DJ, R (on the application of) v Mental Health Review Tribunal

These are two applications for judicial review, one (CO/4009/2004) by DJ and the other (CO/5468/2004) by AN. Both raise essentially the same points of law and they have conveniently been heard together. Permission was given in the first case by Richards J on 22 September 2004 and in the second case by Stanley Burnton J on 26 November 2004.

In each case the defendant is the Mental Health Review Tribunal. In AN’s case there are also three interested parties: the relevant Mental Health NHS Trust, the Secretary of State for the Home Department (who has a statutory responsibility for all patients who are, like AN, subject to a restriction order under section 41 of the Mental Health Act 1983) and MIND (The National Association for Mental Health).

AN and DJ were both represented by Mr Paul Bowen. The Tribunal in each case was represented by Mr Angus McCullough. The Secretary of State was represented by Mr Tim Ward and MIND by Ms Kate Markus. Broadly speaking, Mr Bowen and Ms Markus made common cause, as, on the other side, did Mr McCullough and Mr Ward. The Mental Health NHS Trust has filed an acknowledgment of service and detailed grounds for contesting AN’s claim but has otherwise played no part in the proceedings.

Given that the only points raised are matters of law I can take the facts very shortly. It is convenient to summarise the facts of AN’s case first.

In January 1984 AN carried out the particularly unpleasant and frenzied killings of a mother and her two children. He was found unfit to plead and admitted in March 1985 to what is now Ashworth Hospital following a direction made under section 5 of the Criminal Procedure (Insanity) Act 1964. Having subsequently been found fit to plead he was convicted at the Central Criminal Court in November 1987 on three counts of manslaughter on the ground of diminished responsibility. He was made the subject of a hospital order under section 37 and a restriction order under section 41 of the Mental Health Act 1983. He has remained in Ashworth Hospital ever since. Applications to the Tribunal for his discharge were refused in 1987 (twice), 1989, 1993, 1997, 1999 and 2001. He made a further application under section 70 of the Act in 2004. The Tribunal convened on 27 July 2004 and heard a considerable body of evidence over 5 days. On 14 August 2004 the Tribunal decided that AN should not be discharged.

The Tribunal expressed itself as satisfied (a) that AN was suffering from a relevant form of disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment, (b) that it was necessary for the health or safety of AN or for the protection of other persons that he should receive such treatment and (c) that it was appropriate for AN to remain liable to be recalled to hospital for further treatment – in other words the Tribunal was satisfied as to each of the matters referred to in section 73(1) of the Act. The Tribunal also expressed itself satisfied that there was a “serious risk of relapse should he not receive further treatment in hospital” and that it was therefore necessary for the protection of other persons that AN should receive further treatment in hospital.

Paragraph 1 of the Tribunal’s reasons reads as follows:

“We firstly considered interesting submissions on the standard of proof to be applied to our deliberations and concluded that in relation to an assessment of conflicting expert opinions and diagnoses a balance of probabilities is the realistic standard. However we consider that in accordance with our normal practise [sic] whenever it is necessary to resolve important issues of fact upon which important consequence [sic] flow a much higher standard, akin to the criminal standard, is both fair and reasonable. This has been our approach throughout our consideration of the evidence in this Application.”

It is that direction which has given rise to the present proceedings.

In his application for judicial review issued on 5 November 2004 AN seeks to challenge the decision of the Tribunal, essentially on the ground that the Tribunal erred in applying the bare ‘balance of probabilities’ standard when determining whether it was satisfied that the criteria for detention under section 73 were made out. AN’s case, which had been foreshadowed in submissions made to the Tribunal on his behalf by Mr Bowen, is that the standard of proof which the detaining authority has to meet if seeking to prove the criteria for detention is higher than the ordinary civil standard: either the criminal standard of proof ‘beyond reasonable doubt’ or, alternatively, the ‘clear and convincing evidence’ standard applied by the Supreme Court of the United States of America in Addington v Texas (1979) 441 US 418.

The Tribunal and the Secretary of State assert that the appropriate standard of proof is the ordinary civil standard. The Secretary of State submits that the Tribunal accordingly erred in that part of its direction which referred to “a much higher standard, akin to the criminal standard” as being appropriate when resolving “important issues of fact upon which important consequences flow”.

DJ has been detained under section 37 of the Act since 21 November 1996. He is not subject to a restriction order under section 41. He made an application to the Tribunal for his discharge under section 66 of the Act. The Tribunal convened on 18 June 2004 and on the same day decided that DJ should not be discharged.

The Tribunal expressed itself as satisfied (a) that DJ was suffering from a relevant form of disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment and (b) that it was necessary for the health or safety of DJ or for the protection of other persons that he should receive such treatment – in other words the Tribunal was satisfied as to each of the matters referred to in sections 72(1)(b)(i) and (ii) of the Act. The Tribunal also considered that it was not appropriate to discharge DJ under its discretionary powers. The Tribunal expressed the view that his return to the community would need to be carefully managed.

The crucial paragraph of the Tribunal’s reasons reads as follows:

“There was no expert medical evidence called on behalf of [DJ] but in the Independent Social Circumstances Report put in on his behalf Mr Mennear suggested that at the time of his examination he was by no means certain that the statutory criteria were met. Bearing in mind that the burden of proof lay on the Detaining Authority and that it needed to demonstrate a right to detain on the balance of probabilities, the Tribunal accepted the evidence of Dr Ferris that the statutory criteria were met since there was no evidence to contradict this.”

It is that direction which has given rise to the present proceedings.

In his application for judicial review issued on 18 August 2004 DJ seeks to challenge the decision of the Tribunal, essentially on the same grounds as those put forward by AN, namely that the Tribunal erred in applying the bare ‘balance of probabilities’ standard when determining whether it was satisfied that the criteria for detention under section 72 were made out.

DJ in fact is no longer detained: he was discharged from hospital by the hospital managers on 19 October 2004.

MIND needs no introduction. It is a highly regarded charity with much experience and a well known expertise in relation to mental health matters. It has filed evidence in the form of statements by a number of mental health professionals identifying a variety of concerns. I do not propose to rehearse this material, interesting and illuminating though much of it is. It suffices for present purposes if I summarise the main points which bear on the issues I have to decide. I record MIND’s concerns without comment. In the nature of things I am in no position to assess the extent to which (if at all) they are justified. It is right, though, to note that much of what MIND says is supported by details of specific cases which it refers to.

Apart from what are said to be uncertainties amongst practitioners as to what is the appropriate standard of proof, the absence of any relevant guidance and a lack of consistency – different Tribunals apparently applying different standards of proof – MIND’s main concerns can be summarised as follows:

The essential criteria which determine whether or not the Crown Court or the Magistrates’ Court can make a hospital order under section 37 of the Mental Health Act 1983 are set out in section 37(2). The relevant conditions 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

(b)

the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.”

The circumstances in which a restriction order can be made are set out in section 41(1):

“Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as “a restriction order”.”

The consequences which flow from the making of a restriction order are well known and need not be rehearsed here. They are to be found in section 41(3).

An application to the Tribunal for discharge by a patient subject to a hospital order but not subject to a restriction order is made under section 66. An application by a patient who is subject to a restriction order is made under section 70. In the case of an application made under section 66 by a patient subject to a hospital order the powers of the Tribunal are set out in section 72. In the case of an application made under section 70 by a patient subject to a restriction order the powers of the Tribunal are set out in section 73.

So far as material to a patient who is subject to a hospital order, section 72 provides as follows:

“(1)

Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and –

…

(b)

the tribunal shall direct the discharge of a patient … if they are not satisfied –

(i)

that he is then 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 him to be liable to be detained in a hospital for medical treatment; or

(ii)

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; …

(2)

In determining whether to direct the discharge of a patient … in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard –

(a)

to the likelihood of medical treatment alleviating or preventing a deterioration of the patient’s condition; and

(b)

in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.”

So far as material for present purposes section 73 provides as follows:

“(1)

Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if –

(a)

the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and

(b)

the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2)

Where in the case of any such patient as is mentioned in subsection (1) above –

(a)

paragraph (a) of that subsection applies; but

(b)

paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient.”

Section 73(2) is subject to the power of the Tribunal under section 73(7) to “defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction”.

It will be seen that in the case of a patient subject to a hospital order but not subject to a restriction order the factors that the Tribunal may have to take into account (see sections 37 and 72) include, putting matters shortly, (i) the existence of mental disorder, (ii) its treatability, and (iii) the need for treatment, either for the patient’s own health or safety or for the protection of others. In the case of a patient who is subject to a restriction order the relevant factors (see sections 41 and 73) will also include (iv) the need to protect the public from serious harm and (v) the appropriateness of the patient remaining liable to be recalled for further treatment. I shall return to consider the implications of this in due course.

As the argument has developed two main issues have emerged. The first relates to the standard of proof to be applied by the Tribunal, in so far as the concept of “proof” is relevant. The second relates to the question of whether and to what extent the nature of the task upon which the Tribunal is engaged involves a standard of proof at all. I shall deal with these two issues in turn.

I start with some basic principles relating to the civil standard of proof.

I was taken through a number of well known authorities: Bater v Bater [1951] P 35, Hornal v Neuberger Products Ltd [1957] 1 QB 247 and R v Secretary of State for the Home Department ex p Khawaja [1984] AC 74. But I need not take up time considering them because the general principles are now clearly laid down in two recent decisions of the House of Lords. The first is In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. I go first to the classic passage in the speech of Lord Nicholls of Birkenhead at p 586C:

“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

This substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ in Hornal v Neuberger Products Ltd [1957] 1 QB 247, 266. This approach also provides a means by which the balance of probability standard can accommodate one’ instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”

It is important to note that Lord Nicholls went on specifically to reject any idea of some standard of proof intermediate between the normal civil and criminal standards. At p 587C he said:

“In establishing principles regarding the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings. Proof beyond reasonable doubt, in whatever form of words expressed, is one standard. Proof on a preponderance of probability is another, lower standard having the in-built flexibility already mentioned. If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identify what the standard is and when it applies. Herein lies a difficulty. If the standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change.”

Now it is true that in In re H the House of Lords made no reference (in fact it had not been referred by counsel) to its previous decision in R v Secretary of State for the Home Department ex p Khawaja [1984] AC 74, which can perhaps be read as saying something rather different from what Lord Nicholls subsequently said in In re H. But that omission was repaired in Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, where the House of Lords (see at pp 172C, 176C) considered both ex p Khawaja and In re H. Lord Hoffmann was quite clear at para [55] and his language was very precise:

“By way of preliminary I feel bound to say that I think that a “high civil balance of probabilities” is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”

Despite valiant efforts by Mr Bowen and Ms Markus to persuade me otherwise, I read that as being quite obviously a general statement of principle. Lord Clyde (at para [63]) and Lord Hutton (at para [64]) agreed with Lord Hoffmann.

So much for general principles. I turn now to the only two authorities which are directly in point. The first is a dictum of Lord Clyde in Reid v Secretary of State for Scotland [1999] 2 AC 512 where, speaking of section 64(1) of the Mental Health (Scotland) Act 1984 – the equivalent of section 73 of the English Act –, he said at p 539F:

“The standard of proof is the balance of probabilities, but the importance of the issue for the parties and the public is such as to require particular care and consideration.”

The other is R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2001] EWCA Civ 415, [2002] QB 1, at para [32], where the Court of Appeal treated the standard of proof under sections 72 and 73 as being “on balance of probability”, though, as Lord Phillips of Worth Matravers MR was at pains to point out, this was not a matter on which counsel had addressed detailed argument.

Mr McCullough and Mr Ward frankly accepted that neither of these amounted to binding authority, the observations in each case being mere obiter dicta on a point which seems not to have been the subject of any argument. But of course, as Sir Robert Megarry once remarked, there are dicta and dicta, and I cannot ignore the eminence of those whose views I have quoted. Moreover, a dictum which appears as a mere throw-away line is often the reflection of a judicial view that something is really so obvious as to require neither elaboration nor justification. Common experience, at least until recently and before the days of powerful electronic search engines, was that often the more obvious a point the more difficult it was to find authority for it. As Diplock LJ said in Robson v Hallett [1967] 2 QB 939 at p 953:

“The points are so simple that the combined researches of counsel have not revealed any authority upon them. There is no authority because no one has thought it plausible up till now to question them.”

Moreover these dicta accord with what one might expect having regard to the general principles set out by Lord Nicholls of Birkenhead and Lord Hoffmann in In re H and Rehman. But the point at issue is obviously important – not least because, as Mr Bowen and Ms Markus were at pains to emphasise, it affects the liberty of the subject – so I must look beyond these dicta.

The primary case put forward by Mr Bowen and Ms Markus is, as I have said, that the relevant standard of proof is not the civil standard of proof ‘on a balance of probability’ but the criminal standard of proof ‘beyond reasonable doubt’.

Much of the argument before me on this point centred on three cases: the decision of the Divisional Court in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, the decision of the Court of Appeal in Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] QB 1213, and the decision of the House of Lords in R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787. They relate respectively to the making of sex offender orders under the Crime and Disorder Act 1998, football banning orders under the Football Spectators Act 1989, and anti-social behaviour orders under the Crime and Disorder Act 1998. On any view the subject matter of each of these three cases is far removed from the subject matter with which I am concerned.

Section 2(1) of the Crime and Disorder Act 1998 permits a sex offender order to be made if (section 2(1)(a)) someone “is a sex offender” within the meaning of section 3 of the Act and (section 2(1)(b)) he has “acted … in such a way as to give reasonable cause to believe that a [sex offender order] is necessary to protect the public from serious harm from him”. The question for the Divisional Court in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 was what standard of proof had to be applied in determining whether the conditions in section 2(1) were satisfied. Lord Bingham of Cornhill CJ, with whom Astill J agreed, said at paras [30]-[31]:

“[30] It should, however, be clearly recognised, as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters: Bater v Bater [1951] P 35, Hornal v Neuberger Products Ltd [1957] 1 QB 247, and R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74.

[31] In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates’ court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates’ court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.”

Section 14B of the Football Spectators Act 1989 permits a football banning order to be made “if … the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches”. The question for the Court of Appeal in Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] QB 1213, was what standard of proof had to be applied in determining whether that condition was satisfied. Giving the judgment of the court, Lord Phillips of Worth Matravers MR said at paras [89]-[92]:

“[89] … We also reject the submission that section 14B proceedings are criminal. They neither require proof that a criminal offence has been committed, nor involve the imposition of a penalty. We find that the proceedings that led to the imposition of banning orders were civil in character.

[90] It does not follow from this that a mere balance of probabilities suffices to justify the making of an order. Banning orders under section 14(B) fall into the same category as antisocial behaviour orders and sex offender orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard: see B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354 and R (McCann) v Crown Court at Manchester [2001] 1 WLR 1084, 1102.

[91] Thus the necessity in the individual case to impose a restriction upon a fundamental freedom must be strictly demonstrated. The first thing that has to be proved under section 14B(4)(a) is that the respondent has caused or contributed to violence or disorder in the United Kingdom or elsewhere. Mr Pannick conceded that the standard of proof of this is practically indistinguishable from the criminal standard.

[92] The same is true of the next requirement, that imposed by section 14B(4)(b), though this is less easily derived from the language of the statute. The court must be “satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches”. In practice the “reasonable grounds” will almost inevitably consist of evidence of past conduct. That conduct must be such as to make it reasonable to conclude that if the respondent is not made subject to a banning order he is likely to contribute to football violence or disorder in the future. The past conduct may or may not consist of or include the causing or contributing to violence or disorder that has to be proved under section 14B(4)(a), for that violence or disorder is not required to be football related. It must, however, be proved to the same strict standard of proof. Furthermore it must be conduct that gives rise to the likelihood that, if the respondent is not banned from attending prescribed football matches, he will attend such matches, or the environs of them, and take part in violence or disorder.”

Section 1(1) of the Crime and Disorder Act 1998 permits an anti-social behaviour order to be made if (section 1(1)(a)) someone “has acted … in an anti-social manner” as defined in the Act and (section 1(1)(b)) such an order “is necessary to protect persons … from further anti-social acts by him”. The question for the House of Lords in R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, was what standard had to be applied in determining whether the conditions in section 1(1) were satisfied. Lord Steyn said at para [37]:

“Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).”

Lord Hope of Craighead said much the same at paras [82]-[83]:

“[82] Mr Crow for the Secretary of State said that his preferred position was that the standard to be applied in these proceedings should be the civil standard. His submission, as it was put in his written case, was that although the civil standard was a single, inflexible test, the inherent probability or improbability of an event was a matter to be taken into account when the evidence was being assessed. He maintained that this view was consistent with the position for which he contended, that these were civil proceedings which should be decided according to the civil evidence rules. But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.

[83] … As Mr Crow pointed out, the condition in section 1(1)(b) of the Crime and Disorder Act 1998 that a prohibition order is necessary to protect persons in the local government area from further anti-social acts raises a question which is a matter for evaluation and assessment. But the condition in section 1(1)(a) that the defendant has acted in an anti-social manner raises serious questions of fact, and the implications for him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard.”

Now as we have seen, in Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] QB 1213, at para [90], Lord Phillips of Worth Matravers MR saw all three types of order – sex offender orders, football banning orders and anti-social behaviour orders – as falling into what he called “the same category”. Lord Hope of Craighead in R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, at para [82] described them as cases where “allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.” That comment cannot be read literally, as Mr Bowen and Ms Markus would have me read it, for read in that way it would apply, for example, to allegations of fraud made against a professional man in civil proceedings or allegations of child-murder made against a parent in care proceedings, in both of which situations the law is clear that it is the civil standard of proof that applies. I suspect that Lord Hope of Craighead was thinking more of the nature of the proceedings rather than merely the nature of the allegations being made.

Be that as it may, what I venture to think is the most illuminating analysis of this type of legislation is to be found in the speech of Lord Steyn in R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, at paras [17]-[18]. The passage, in a section of Lord Steyn’s speech headed ‘The legislative technique’, deserves to be read in full but is too long to quote. I confine myself to the key passages. In para [17] Lord Steyn said:

“The criminal law by itself offered inadequate protection to them. There was a model available for remedial legislation. Before 1998 Parliament had, on a number of occasions, already used the technique of prohibiting by statutory injunction conduct deemed to be unacceptable and making a breach of the injunction punishable by penalties.”

Having referred to various examples, including football banning orders, Lord Steyn continued in paras [17]-[18]:

“[17] … In all these cases the requirements for the granting of the statutory injunction depend on the criteria specified in the particular statute. The unifying element is, however, the use of the civil remedy of an injunction to prohibit conduct considered to be utterly unacceptable, with a remedy of criminal penalties in the event of disobedience.

[18] There is no doubt that Parliament intended to adopt the model of a civil remedy of an injunction, backed up by criminal penalties, when it enacted section 1 of the Crime and Disorder Act 1998. The view was taken that the proceedings for an anti-social behaviour order would be civil and would not attract the rigour of the inflexible and sometimes absurdly technical hearsay rule which applies in criminal cases.”

Viewed in this light, these cases, as it seems to me, have little if any bearing on the general question of the civil standard of proof as authoritatively laid down by Lord Hoffmann in Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, at para [55], and nothing to do with the very different topic with which I am concerned. They were, moreover, as Mr Ward pointed out, cases where the criminal standard of proof was being applied to the proof of facts relating to past conduct, and in circumstances where the proof of that past conduct was the jurisdictional gateway not merely to the imposition of a civil injunction but also of criminal penalties in the event of disobedience. This is a topic to which I must return in due course, but the exercise carried out by the Tribunal under section 72 or section 73 is not concerned with the proof of allegations as to past conduct of a criminal or quasi-criminal nature. Indeed, it is not primarily engaged in fact finding in this sense at all.

I am reinforced in this view by the subsequent fate of Bodey J’s attempt in Re ET (Serious Injuries: Standard of Proof) (Note) [2003] 2 FLR 1205 to apply the approach in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 and R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, in the very context – care proceedings under the Children Act 1989 – which the House of Lords had earlier considered in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563.

Bodey J’s approach was repudiated by the Court of Appeal in In re U (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, at para [13], where Dame Elizabeth Butler-Sloss P, giving the judgment of the court, said:

“We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as “largely illusory”. In our judgment this approach is mistaken. The standard of proof to be applied in Children Act 1989 cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. That test has not been varied nor adjusted by the dicta of Lord Bingham of Cornhill CJ or Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division, on the one hand, between crime and preventative measures taken to restrain defendants for the benefit of the community and, on the other hand, wholly different considerations of child protection and child welfare nor to apply the reasoning in McCann’s case [2003] 1 AC 787 to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In our judgment therefore Bodey J applied too high a standard of proof in In re ET [2003] 2 FLR 1205 and the principles set out by Lord Nicholls should continue to be followed by the judiciary trying family cases and by magistrates sitting in the family proceedings courts.”

The President said almost exactly the same only five days later in Re T (Abuse: Standard of Proof) [2004] EWCA Civ 558, [2004] 2 FLR 838, at para [28].

In this context I was also referred to the decision of the Competition Appeal Tribunal (Sir Christopher Bellamy, President) in JJB Sports PLC v Office of Fair Trading [2004] CAT 17. That was an appeal from a decision of the OFT that a number of undertakings, including the appellant, had engaged in price fixing contrary to the prohibition imposed by section 2 of the Competition Act 1998. It was common ground (see para [164]) that the burden of proof was on the OFT. The issue before the Tribunal was as to the standard of proof, a topic it had previously considered in Napp v Director General of Fair Trading [2002] CAT 1, [2002] CompAR 13. Following an analysis of Napp and a detailed survey and analysis of the case-law to which I have referred above, the Tribunal concluded (see at paras [195]-[204]) that the relevant standard of proof was the ordinary civil standard of proof on a balance of probability as articulated by Lord Nicholls of Birkenhead in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563.

I draw attention to this case for two reasons. The first is because of what the Tribunal said at paras [199] and [201]:

“[199] … it is important to distinguish between two different things: what the test is, on the one hand, and what is the nature of the evidence necessary to satisfy the test, on the other. As regards the test, the civil standard is the balance of probabilities. As regards the nature of the evidence, the authorities cited above show that where serious matters are in issue, for example conduct akin to dishonesty, the quality and weight of the evidence needs to be stronger than it would need to be if the allegations were less serious …

[201] … the Tribunal will … direct itself in accordance with the speech of Lord Nicholls in Re H at p 586, that “…even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters”. We take the reference to “more sure” in the speech of Lord Nicholls to be a reference to the quality and weight of the evidence to which the test is to be applied: the more serious the allegation, the more cogent should be the evidence before the court concludes that the allegation is established on the preponderance of probabilities … ”

This distinction between the test – the standard of proof on a balance of probability – and the nature, quality and weight of the evidence required to satisfy the test is valuable and important. It neatly encapsulates the key point that what Ungoed-Thomas J was directing attention to in In re Dellow was not some different standard of proof but rather the quality of the evidence required to meet the civil standard of proof.

The other reason I refer to the case is because of the nature of the proceedings before the Tribunal. Having referred at para [192] to its “partly inquisitorial role”, the Tribunal went on at para [193] to make this important point:

“We also remind ourselves that many of the issues with which the Tribunal has to deal involve the appreciation or evaluation of economic questions, for example, whether an agreement “distorts” competition, the extent of the relevant market, whether dominance is established, whether certain conduct is “objectively justified”, whether an agreement satisfies Article 81(3) and so on. Under the 2004 Amendment Regulations, the question whether the Chapter I prohibition is infringed may now involve examining not only whether section 2 of the Act is satisfied, but also whether section 9 of the Act is not satisfied. Section 9 includes such concepts as “economic progress”, “allowing consumers fair share of the economic benefits”, and whether restrictions are “not indispensable”. In so far as the concept of “proof” is relevant at all, we see no sensible way of resolving such issues by the application of the criminal standard as conventionally understood.”

The subject-matter of the Competition Act 1998 is, of course, very far removed indeed from the subject-matter which I am concerned with here. But it might be thought that the nature of the exercise which the Competition Appeal Tribunal has to undertake – the evaluation of technical concepts which are in the nature of things incapable of exact demonstration – is in many ways rather similar to the nature of the exercise which the Mental Health Review Tribunal has to undertake. Neither is operating in the realm of ‘hard’ science. Both are operating in the realm of ‘soft’ science: in the one case economics, in the other psychiatry.

This is a topic which I must return to below. For the moment I merely observe that, as we shall see in due course, Burger CJ said much the same thing in Addington v Texas (1979) 441 US 418 – and this time in the very context of mental health with which I am concerned.

Before leaving this part of the case I must mention three decisions to which Ms Markus referred me: R v Headteacher and Independent Appeal Committee of Dunraven School ex p B [2000] ELR 156 at p 204E, R (S) v The Governing Body of YP School [2003] EWCA Civ 1306, [2004] ELR 37, and R (M) v Independent Appeal Panel, Governing Body and Head Teacher of CH School [2004] EWHC 1831 (Admin), [2005] ELR 38. They relate to the standard of proof to be applied by schools, or by the appeal panel, when considering the exclusion from school of a pupil accused of conduct which is alleged to involve the commission of a criminal offence. Ms Markus pointed in particular to the statements of Brooke LJ in the Dunraven case at p 204F that “proof should not be on the ordinary balance of probabilities … it should be distinctly more probable … than … not” and of Laws LJ in the YP case at para [4] that “the degree of probability required equates with the criminal standard of proof.”

I have to say that one’s confidence in these pronouncements is tempered by the facts (1) that in the Dunraven case, as Brooke LJ recognised at p 204E, the point had not even been “mentioned on the appeal”, (2) that in the YP case the point – indeed the whole appeal – was conceded in the Court of Appeal in circumstances where, as Newman J pointed out in the CH case at para [27], it does not appear that the Dunraven case was cited to the court, and (3) that the decisions in both Dunraven case and the YP case have been reversed legislatively. Regulation 7A of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, SI 2002/3178, inserted by regulation 4 of the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004, SI 2004/402, with effect from 22 March 2004, provides that “where it falls to” either a school or an appeal panel “to establish any fact, any question as to whether that fact is established shall be decided on a balance of probabilities.”

I have to say, with all respect, that I do not find these cases of any assistance.

In my judgment there is simply no basis for asserting that either the criminal standard of proof, or some heightened standard of proof approaching or for all practical purposes indistinguishable from the criminal standard of proof, has any application to anything the Tribunal is called upon to do. There is no support for the proposition either in authority or in principle. The case law to which Mr Bowen and Ms Markus refer has nothing to do with the very different topic with which I am concerned. The cases they rely upon do not assist at all. And for the reasons expressed both by the Competition Appeal Tribunal in JJB Sports PLC v Office of Fair Trading [2004] CAT 17 at para [193] and by Burger CJ in Addington v Texas (1979) 441 US 418 (see paragraph [57] below) the application of such a standard would be utterly impracticable having regard to the nature of the issues before the Tribunal.

Burger CJ put the point very plainly: application of the criminal standard of proof might work to the disadvantage of “many patients desperately in need of institutionalized psychiatric care” – as he put it, “such “freedom” for a mentally ill person would be purchased at a high price” – and might “completely undercut … efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.” I respectfully agree.

I turn now to the alternative case put forward by Mr Bowen and Ms Markus, that if the relevant standard of proof is not the criminal standard of proof ‘beyond reasonable doubt’ it is, or ought to be, the ‘clear and convincing evidence’ standard applied by the Supreme Court of the United States of America in Addington v Texas (1979) 441 US 418.

As explained by White J in Foucha v Louisiana (1992) 504 US 71 at p 75, what Addington v Texas (1979) 441 US 418 decided was that:

“to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others. Proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process.”

Burger CJ’s judgment in Addington v Texas (1979) 441 US 418 is interesting and important for a number of different reasons. In the first place it contains an illuminating jurisprudential explanation of the function of a standard of proof. As Burger CJ, giving the judgment of the court, explained at p 423 (I omit the citations to various authorities referred to):

“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.

In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

The intermediate standard, which usually employs some combination of the words “clear,” “cogent,” “unequivocal” and “convincing,” is less commonly used, but nonetheless “is no stranger to the civil law.” One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof. Similarly, this Court has used the “clear, unequivocal and convincing” standard of proof to protect particularly important individual interests in various civil cases.”

He then referred to a number of deportation and denaturalization cases.

Secondly, as Burger CJ put it at p 425 (again I omit the citations):

“adopting a “standard of proof is more than an empty semantic exercise.” In cases involving individual rights, whether criminal or civil, “[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.””

As he said at p 426:

“standards of proof are important for their symbolic meaning as well as for their practical effect.”

This, however, cuts both ways, for as Burger CJ observed at p 428, referring to the criminal standard of proof ‘beyond a reasonable doubt’:

“This unique standard of proof … is regarded as a critical part of the “moral force of the criminal law,” and we should hesitate to apply it too broadly or casually in noncriminal cases.”

Thirdly, as he put it at p 427:

“Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.”

It was against this background that Burger CJ explained at p 425 the Court’s approach to the standard of proof in the case at hand:

“In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions.

This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena “stigma” or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.

The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others. Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear to what extent, if any, the state’s interests are furthered by using a preponderance standard in such commitment proceedings.”

He continued at p 426:

“At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.

The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.”

Having thus rejected what we would call the balance of probability as inadequate, Burger CJ turned at p 428 to consider the argument that the criminal standard of proof should be applied. Rejecting the argument he said:

“There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense … a civil commitment proceeding can in no sense be equated to a criminal prosecution.

… The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free. The full force of that idea does not apply to a civil commitment. It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction. However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient’s condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. It cannot be said, therefore, that it is much better for a mentally ill person to “go free” than for a mentally normal person to be committed.”

At p 429 he identified another reason why the criminal standard was not appropriate:

“Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question – did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous.

The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical “impressions” drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for “factfinding” is a “reasonable medical certainty.” If a trained psychiatrist has difficulty with the categorical “beyond a reasonable doubt” standard, the untrained lay juror – or indeed even a trained judge – who is required to rely upon expert opinion could be forced by the criminal law standard of proof to reject commitment for many patients desperately in need of institutionalized psychiatric care. Such “freedom” for a mentally ill person would be purchased at a high price.

That practical considerations may limit a constitutionally based burden of proof is demonstrated by the reasonable-doubt standard, which is a compromise between what is possible to prove and what protects the rights of the individual. If the state was required to guarantee error-free convictions, it would be required to prove guilt beyond all doubt. However, “[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.”

The similarity of that analysis to what the Competition Appeal Tribunal said in JJB Sports PLC v Office of Fair Trading [2004] CAT 17 in the passage in its judgment at para [193] to which I have already drawn attention is striking.

The Court’s overall conclusion was set out by Burger CJ at p 431:

“We conclude that it is unnecessary to require states to apply the strict, criminal standard.

Having concluded that the preponderance standard falls short of meeting the demands of due process and that the reasonable-doubt standard is not required, we turn to a middle level of burden of proof that strikes a fair balance between the rights of the individual and the legitimate concerns of the state. We note that 20 states, most by statute, employ the standard of “clear and convincing” evidence; 3 states use “clear, cogent, and convincing” evidence; and 2 states require “clear, unequivocal and convincing” evidence.

In Woodby v INS, 385 US 276 (1966), dealing with deportation, and Schneiderman v United States, 320 US, at 125, 159, dealing with denaturalization, the Court held that “clear, unequivocal, and convincing” evidence was the appropriate standard of proof. The term “unequivocal,” taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases. The issues in Schneiderman and Woodby were basically factual and therefore susceptible of objective proof and the consequences to the individual were unusually drastic – loss of citizenship and expulsion from the United States.

We have concluded that the reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly, we conclude that use of the term “unequivocal” is not constitutionally required, although the states are free to use that standard. To meet due process demands, the standard has to inform the factfinder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases.

We noted earlier that the trial court employed the standard of “clear, unequivocal and convincing” evidence in appellant’s commitment hearing before a jury. That instruction was constitutionally adequate. However, determination of the precise burden equal to or greater than the “clear and convincing” standard which we hold is required to meet due process guarantees is a matter of state law which we leave to the Texas Supreme Court.”

Addington v Texas (1979) 441 US 418 contains, as I have said, a compelling demonstration of why the criminal standard of proof has no part to play in this area of the law. With that part of Burger CJ’s judgment I have no quarrel at all. Indeed, I rely upon it. There is much else in his judgment which is both illuminating and important. And if the matter was res integra, if there were no English authorities standing in the way, there might be much to be said for applying the ‘clear and convincing evidence’ standard as explained by Burger CJ. But the simple fact, as Mr McCullough and Mr Ward submit, is that this approach is blocked by domestic authority which is binding on me. The ‘intermediate’ standard of proof, which was apparently a recognised feature of American law even before it was applied in the mental health context by Addington v Texas (1979) 441 US 418, is just not a part of English law. The ‘intermediate’ standard of proof was considered and decisively rejected by Lord Nicholls of Birkenhead in In re H and again by Lord Hoffmann in Rehman. English law does not recognise the intermediate standard. As Lord Hoffmann put it, “The only higher degree of probability required by the law is the criminal standard” (emphasis added).

As I pointed out during the course of argument, there is in fact one context – medical law – in which the approach in Addington v Texas (1979) 441 US 418 has been adopted, albeit in much muted form, in English law. In some American states the Addington standard of proof had been applied to cases involving the withdrawal of life-sustaining treatment: see, for example, the decisions of the Court of Appeals of New York in Re Storar, Re Eichner (1981) 420 NE 2d 64 at p 72 and Re O’Connor (1988) 531 NE 2d 607 at p 612 per Wachtler CJ. Quoting from Addington and another earlier authority, Wachtler CJ in both cases identified the rationale as follows:

“This standard serves to “impress the factfinder with the importance of the decision” and it “forbids relief whenever the evidence is loose, equivocal or contradictory”.”

Via Re O’Connor some at least of the language in Addington has been adopted into English law: see Kennedy & Grubb, Principles of Medical Law, (ed 2) para 4.111. But this has not affected the standard of proof. In HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam), [2003] 2 FLR 408, at para [24], referring to the standard of proof required for a valid advance directive refusing life sustaining treatment, I said:

“clear and convincing proof is required. I do not suggest that anything more than the usual civil standard of proof on a balance of probability is required. But the more extreme the gravity of the matter in issue so, as it seems to me, the stronger and more cogent must the evidence be: cf the discussion in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 of the well-known statement by Ungoed-Thomas J in Re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research [1964] 1 WLR 451 at 455. Where, as here, life is at stake, the evidence must be scrutinised with especial care. The continuing validity and applicability of the advance directive must be clearly established by convincing and inherently reliable evidence.”

As I summarised it at para [46]:

“Where life is at stake the evidence must be scrutinised with especial care. Clear and convincing proof is required. The continuing validity and applicability of the advance directive must be clearly established by convincing and inherently reliable evidence.”

I made the same point in R (Burke) v General Medical Council (Official Solicitor intervening) [2004] EWHC 1879 (Admin), [2005] 2 WLR 431, at paras [77] and [103].

In my judgment Addington v Texas (1979) 441 US 418 does not assist Mr Bowen and Ms Markus.

In support of their arguments in favour of the ‘clear and convincing evidence’ standard Mr Bowen and Ms Markus also seek to pray in aid R (N) v M [2002] EWCA Civ 1789, [2003] 1 WLR 562, a case where the Court of Appeal was concerned with the circumstances in which compulsory medical treatment could be given to a patient in accordance with section 58(3)(b) of the Act. Giving the judgment of the court, Dyson LJ said this at paras [16]-[18]:

“[16] An important question is what standard of proof is required before a court can properly be satisfied that it is appropriate to give permission for treatment where the patient does not consent to it. The judge was right to say that he had to be satisfied that the proposed treatment was both in the claimant’s best interests and “medically necessary” as that phrase should be understood and applied for the purposes of article 3 of the Convention. The best interests test goes wider than medical necessity: see In re S (Adult Patient: Sterilisation) [2001] Fam 15. The focus of the argument before us was on the requisite standard of proof for the purposes of article 3. In Herczegfalvy v Austria (1992) 15 EHRR 437, 484, para 82 the European Court of Human Rights said:

“The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention is being complied with. While it is for the medical authorities to decide, on the basis of the recognisable rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are responsible, such patients nevertheless remain under the protection of article 3, the requirements of which permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.”

[17] In the light of this decision, it is common ground that the standard of proof required is that the court should be satisfied that medical necessity has been “convincingly” shown. That is the test that the judge applied: see paragraph 117 where he said:

“the task of the court when considering whether proposed treatment is in breach of article 3 is to determine not simply whether such treatment is a medical necessity on the balance of probabilities but whether it has ‘been convincingly shown’ to be a medical necessity.”

[18] Mr Kelly submitted that this test is, in effect, the same as the criminal standard of proof. We disagree. It seems to us that no useful purpose is served by importing the language of the criminal law. The phrase “convincingly shown” is easily understood. The standard is a high one. But it does not need elaboration or further explanation.”

Now the context in which those observations were made – compulsory medical treatment – was rather different from that which I am concerned with. But in any event, Mr Bowen and Ms Markus in my judgment read too much into what Dyson LJ was saying. His analysis was avowedly based on the Strasbourg court’s statement in Herczegfalvy v Austria (1992) 15 EHRR 437 at para [82] that any medical necessity relied upon must be “convincingly shown to exist”. That was in the context of Article 3, but although this does not appear from Dyson LJ’s judgment it hardly stands alone in the Strasbourg jurisprudence. A similar test has also been applied by the Strasbourg court in relation, for example, to Articles 2, 8 and 10.

Article 2, as is well known, imposes on the State an obligation to conduct an effective investigation into the death of anyone who dies while in its custody. In Salman v Turkey (2000) 34 EHRR 425 at paras [99]-[100] the Court described the obligation on the authorities to account for the treatment of an individual who dies in custody as “particularly stringent” and said:

“the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.”

Similarly the Court has held that the need for any restrictions or exceptions under Article 8(2) or Article 10(2) “must be convincingly established”: see in relation to Article 10 The Sunday Times v United Kingdom (No 2) (1991) 14 EHRR 229 at para [50] and in relation to Article 8 Funke v France (1993) 16 EHRR 297 at para [55] and Société Colas Est v France (2004) 39 EHRR 17 at para [47]. Domestic authority, however, does not suggest that the “convincingly established” approach, for example in the context of Article 10, affects the standard of proof. Rather it goes to the nature and quality of the evidence required to make good the case: see, for example, Kelly v British Broadcasting Corp [2001] Fam 59 at pp 68E, 70D, 85A, and Re X (a child) (injunctions restraining publication) [2001] 1 FCR 541 at p 549b (what is required is proper evidence rather than mere assertion or assumption).

Moreover, as Mr McCullough pointed out, in the present context I am concerned not so much with Articles 3 and 8 as with Article 5, and the Strasbourg jurisprudence does not adopt even the “convincingly shown” standard in the Article 5 context: see Winterwerp v The Netherlands (1979) 2 EHRR 387 at para [39] holding that:

“the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’.”

In my judgment, arguments derived from the Strasbourg jurisprudence, either directly or as applied in R (N) v M [2002] EWCA Civ 1789, [2003] 1 WLR 562, do not assist me in the present context. These are cases which emphasise the nature and quality of the evidence that is required in certain contexts. They are not cases calling for a standard of proof higher than the ordinary civil standard of proof ‘on a balance of probability’.

Mr Bowen also referred me to R v Oakes [1986] 1 SCR 103, where the Supreme Court of Canada had to consider the standard of proof applicable when seeking to establish under section 1 an exception to one of the rights guaranteed by the Canadian Charter of Rights and Freedoms. At p 136 Dickson CJ said:

“The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation …

The standard of proof under s. 1 is the civil standard, namely, proof by a preponderance of probability. The alternative criminal standard, proof beyond a reasonable doubt, would, in my view, be unduly onerous on the party seeking to limit. Concepts such as “reasonableness”, “justifiability” and “free and democratic society” are simply not amenable to such a standard. Nevertheless, the preponderance of probability test must be applied rigorously. Indeed, the phrase “demonstrably justified” in s. 1 of the Charter supports this conclusion. Within the broad category of the civil standard, there exist different degrees of probability depending on the nature of the case … As Lord Denning explained in Bater v Bater, [1950] 2 All ER 458 (CA), at p. 459:

The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.

This passage was cited with approval in Hanes v Wawanesa Mutual Insurance Co, [1963] SCR 154, at p 161. A similar approach was put forward by Cartwright J in Smith v Smith, [1952] 2 SCR 312, at pp. 331-32:

I wish, however, to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend on the totality of the circumstances on which its judgment is formed including the gravity of the consequences …

Having regard to the fact that s. 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be, in the words of Lord Denning, “commensurate with the occasion”. Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit.”

That case, as will be noted, pre-dates the decisions in both In re H and Rehman. It does not assist me. Nor, I might add, does the judgment of Adams J in the New South Wales Supreme Court in Presland v Hunter Area Health Service [2003] NSWSC 754 to which Mr Bowen also referred me. I do not, with all respect to Mr Bowen’s industry, find that case of any assistance, for it really turned on the particular provisions of the relevant legislation.

In my judgment the applicable standard of proof is the ordinary civil standard of proof ‘on a balance of probability’. That is consistent with authority and principle. It accords with the dicta in Reid v Secretary of State for Scotland [1999] 2 AC 512 and in R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2001] EWCA Civ 415, [2002] QB 1. And, as Mr McCullough submits, although it is not necessary for me to rehearse his arguments in detail, it is confirmed by a purposive construction of the Act and a consideration of the statutory context in which the Tribunal operates. I agree with him that to raise the standard of proof above the ordinary civil standard of proof would subvert the obvious purpose of the Act, which seeks both to protect the interests of the individual whose ability to act in his own best interests is impaired and at the same time enable a proportionate balance (see paragraphs [83]-[84] below) to be struck between individual and public interests. It would, as Mr McCullough submits, relegate the interests of the patient, as objectively ascertained, and of the public, to a position subsidiary to the principle of personal autonomy – an approach for which there is no principled basis. And it would thereby create a heightened risk to patients and the public – contrary, as it seems to me, to the very scheme and purpose of the Act.

Finally I note that in what I think is the not wholly dissimilar context of the Parole Board it has been held that the civil standard of proof applies. In R (Brooks) v The Parole Board [2004] EWCA Civ 80 at para [28] Kennedy LJ said:

“In so far as it is relevant to do so the Parole Board applies the civil standard of proof.”

I can think of no good reason why the Tribunal should adopt a different standard from that applied by the Parole Board. After all, both bodies have to conduct very similar exercises in not very different contexts.

I conclude therefore that, insofar as it is relevant to think in terms of a standard of proof at all, the standard to be applied by the Tribunal, whether under section 72 or section 73, is the ordinary civil standard of proof as explained in the passages in In re H and Rehman which I have set out above.

Thus far I have assumed that the relevant issue is simply the identification of the appropriate standard of proof. But this assumes that the Tribunal has to apply a standard of proof. I need now to consider the second main issue which I identified above. To what extent does the nature of the task upon which the Tribunal is engaged involve a standard of proof at all?

This is a not unfamiliar question which arises in a number of different legal contexts. We have seen two already. In R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, as we saw, Lord Steyn at para [37] said:

“The inquiry under section 1(1)(b) [of the Crime and Disorder Act 1998], namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation.”

The question, as Lord Hope of Craighead put it at para [83], was “a matter for evaluation and assessment.” And the Competition Appeal Tribunal said much the same in JJB Sports PLC v Office of Fair Trading [2004] CAT 17 at para [193], where, speaking of its task under the Competition Act 1998, it said that:

“many of the issues with which the Tribunal has to deal involve the appreciation or evaluation of economic questions”.

As I shall shortly demonstrate, precisely the same analysis applies to much of the task of the Mental Health Review Tribunal under sections 72 and 73. But first I should make a number of preliminary, if rather obvious, points.

The first relates to the subtlety and complexity of the task faced by doctors and Tribunals when considering issues of the kind identified by section 72 and section 73. This was a matter to which Burger CJ drew attention in the passage from his judgment in Addington v Texas (1979) 441 US 418 which I set out in paragraph [57] above. But a number of English cases emphasise the same point. Thus in R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2003] UKHL 58, [2004] 2 AC 280, at para [9] Lord Bingham of Cornhill drew attention to the fact that:

“While doctors may be expected to exercise their best professional judgment in diagnosing the condition and assessing the cases of those suffering from mental disorder, and prescribing treatment, their conclusions will rarely be capable of scientific verification. There will often be room for a bona fide difference of professional opinion. In Johnson v United Kingdom (1997) 27 EHRR 296, para 61, the European Court of Human Rights said: “It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science.””

Baroness Hale of Richmond said much the same thing in R v Ashworth Hospital Authority ex p B [2005] UKHL 20 at para [31]:

“ … psychiatry is not an exact science. Diagnosis is not easy or clear cut. As this and many other cases show, a number of different diagnoses may be reached by the same or different clinicians over the years. As this case also shows, co-morbidity is very common … It is not easy to disentangle which features of the patient’s presentation stem from a disease of the mind and which stem from his underlying personality traits. The psychiatrist’s aim should be to treat the whole patient. In this case, the patient's mental illness having been stabilised on medication, the aim was to address the underlying features of his personality which were getting in the way of his transfer back to a less restrictive setting. Once the state has taken away a person’s liberty and detained him in a hospital with a view to medical treatment, the state should be able (some would say obliged) to provide him with the treatment which he needs.”

The second point relates to the particular position of those patients who are subject to restriction orders. I go first to what the Court of Appeal, Criminal Division, said in R v Beulah Birch (1990) 90 Cr App R 78. Distinguishing between a patient subject only to a hospital order under section 37 and a patient subject also to a restriction order under section 41, Mustill LJ at p 84 said:

“There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient’s nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the Court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.

In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the … Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence.”

The position of a patient subject to a restriction order was again considered by the Court of Appeal in R v Secretary of State for the Home Department ex p K [1991] 1 QB 270. Rejecting the submission (see at p 281A) that the policy and objects of the Act are that persons should not be deprived of their liberty unless they are shown, on the basis of objective medical evidence, to be suffering from mental disorder of such a degree as to warrant their compulsory confinement, McCowan LJ said at p 281B:

“In our judgment, that defines the policy and objects of the Act on far too narrow a basis. We prefer the view of McCullough J [1990] 1 WLR 168, 174 that:

“These are to regulate the circumstances in which the liberty of persons who are mentally disordered may be restricted and, where there is conflict, to balance their interests against those of public safety.””

At p 281G McCowan LJ repeated that it was:

“necessary to balance the interests of the patient against those of public safety.”

It is against this background that I turn to consider the functions and task of the Tribunal.

At the outset it is important to note, as Stanley Burnton J put it in R (Ashworth Hospital Authority) v MHRT for the West Midlands and North West Regions [2001] EWHC Admin 901, [2002] MHLR 13, at para [16], that “The procedure of a Mental Health Review Tribunal is to a significant extent inquisitorial.” Moreover, rule 14(2) of the Mental Heath Review Tribunal Rules 1983 permits the Tribunal to “receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law.”

The nature of the exercise facing the Tribunal was described by Lord Phillips of Worth Matravers MR giving the judgment of the Court of Appeal in R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2001] EWCA Civ 415, [2002] QB 1, at para [33]:

“The circumstances of the present case, which are similar to those considered by Latham J in Ex p Moyle [2000] Lloyd’s Rep Med 143, are not uncommon. A patient is detained who is unquestionably suffering from schizophrenia. While in the controlled environment of the hospital he is taking medication, and as a result of the medication is in remission. So long as he continues to take the medication he will pose no danger to himself or to others. The nature of the illness is such, however, that if he ceases to take the medication he will relapse and pose a danger to himself or to others. The professionals may be uncertain whether, if he is discharged into the community, he will continue to take the medication. We do not believe that article 5 requires that the patient must always be discharged in such circumstances. The appropriate response should depend upon the result of weighing the interests of the patient against those of the public having regard to the particular facts. Continued detention can be justified if, but only if, it is a proportionate response having regard to the risks that would be involved in discharge.”

As Elias J put it in R (Secretary of State for the Home Department) v Mental Health Review Tribunal (PH interested party) [2002] EWHC 1128 (Admin) at paras [24] and [26]:

“In determining whether it is appropriate to detain a patient in hospital, the interests of the patient have to be weighed against those of the public, and the tribunal has to determine whether the detention is proportional to the risks involved. If it is not satisfied that it is a proportionate response to those risks to detain the patient, then he must be discharged … the proportionate response to the risk may be achieved by the imposition of suitable conditions rather than by continuing the patient's detention. If the appropriate response can be so achieved, then the patient should be discharged.”

This, as it seems to me, neatly encapsulates the balance which is inherent in the Tribunal’s task under the Act.

One final point. In approaching its task the Tribunal must use its expertise and look at “the reality of the situation”: see R (Epsom & St Helier NHS Trust) v The Mental Health Review Tribunal (W interested party) [2001] EWHC Admin 101 per Sullivan J at paras [52] and [61].

As can be seen the approach which has to be adopted by the Tribunal is, perhaps not surprisingly, very much the same as that which applies in the analogous case of the Parole Board. In R v Parole Board ex p Watson [1996] 1 WLR 906 at p 916H Sir Thomas Bingham MR said:

“In exercising its practical judgment the board is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury. In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance the board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury.”

As Lord Bingham of Cornhill he said much the same thing in R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, at para [16]:

“There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt.”

I have said enough to show that in many aspects of its task the Tribunal is not concerned so much with finding facts which are capable of exact demonstration by ‘hard’ science but rather with a process of judgment, evaluation and assessment which involves the appreciation and evaluation of inherently imprecise and often differing or conflicting psychiatric evidence. Moreover the Tribunal is necessarily peering into an as yet unknown and unknowable future and, particularly in the case of a restricted patient, seeking to evaluate, assess and minimise future risks – risks of medical relapse and, it may be, risks of re-offending.

In this connection there are, if I may say so, some very valuable observations of Laws LJ in A and others v Secretary of State for the Home Department [2004] EWCA Civ 1123 at paras [157]-[159]:

“[157] … I consider it worth making some general remarks at this stage about the law’s approach to the avoidance, or minimisation, of risk. The paradigm of the common law’s function is, I suppose, the case where A undertakes to prove a claim against B. Whether A is a public prosecutor or a private claimant, his case is won if it is proved and lost if it is not. Our long history of adversarial process conduces to a sense that this is the just way of doing things. The defendant is only subject to criminal sanction or civil redress if the case is properly proved against him, the standard of proof being appropriate to the subject-matter of the case.

[158] But the law knows many instances in which a defendant is fixed with onerous legal consequences in the absence of any proof beyond a reasonable doubt or on the balance of probability; where, rather, all that can be shown is that there is a risk or a chance that this or that will eventuate. Such instances generally arise where the court is particularly called on to assess what may happen in the future. In the field of environmental law “risk theory”, as it is sometimes named, plays an increasingly important role. Claimants for damages for personal injuries may recover for the loss of a future chance (say of advancement at work) or the burden of a future danger (say of contracting epilepsy). In the law of crime, a man may be sentenced to a term of imprisonment, and it may be life imprisonment, longer than would be justified by considerations of retribution or deterrence; its justification consists in the unpredictable future risk which he presents of danger to the public. Our asylum law is about the avoidance of risk of persecution. Legislation concerning the disclosure (in some circumstances) of unproved allegations of sexual misconduct has been enacted to minimise the risk of abuse of children and vulnerable adults.

[159] Other instances may readily be called to mind. I refer to such cases only to show that our law is no stranger to the prevention of risk. Its processes are not limited to the allocation of legal consequences on proof of facts. This is unsurprising. The prevention of risk may be a very powerful imperative; powerful enough, in reason, to justify the imposition of legal sanctions or burdens where there is no conventional proof that this or that has happened or will happen. It is true that in the instances I have mentioned relating to personal injury and crime, a case will at least have first been proved against the defendant before he has to pay for unproved risks. He will have been shown to have been negligent, or to have committed the crime in question, according to the appropriate standard of proof. The sanction imposed upon him for the prevention of risk – additional damages, longer imprisonment – is not the whole substance of the case against him.”

As I have already remarked there are various other more or less analogous situations where a court or tribunal is engaged upon very much the same kind of task as the Mental Health Review Tribunal.

I have already referred in this connection to R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, and JJB Sports PLC v Office of Fair Trading [2004] CAT 17. Another example is to be found in the case of care proceedings. In In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 the House of Lords was concerned with the proper approach to the proof, in accordance with section 31(2) of the Children Act 1989, of an allegation that a child “is likely to suffer significant harm”. Having held at p 585H that “likely” in this context does not mean more probable than not but connotes merely “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”, Lord Nicholls of Birkenhead went on at p 591E:

“by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite … And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”

Another example, and again at the highest level, is to be found in Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153. In the Court of Appeal, Lord Woolf MR had said at paras [43]-[44]:

“[43] … SIAC then identified five specific allegations made by the Secretary of State and came to the conclusion, applying a high civil balance of probabilities, they were not satisfied that the case against Mr Rehman had been made out. On one approach to the issue which was before them, the standard applied by SIAC was perfectly appropriate. In so far as the Secretary of State was relying on specific allegations of serious misconduct by Mr Rehman, then SIAC was entitled to say the allegations had not been proved.

[44] However, in any national security case the Secretary of State is entitled to make a decision to deport not only on the basis that the individual has in fact endangered national security but that he is a danger to national security. When the case is being put in this way, it is necessary not to look only at the individual allegations and ask whether they have been proved. It is also necessary to examine the case as a whole against an individual and then ask whether on a global approach that individual is a danger to national security, taking into account the executive's policy with regard to national security. When this is done, the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion. Here it is important to remember that the individual is still subject to immigration control. He is not in the same position as a British citizen. He has not been charged with a specific criminal offence. It is the danger which he constitutes to national security which is to be balanced against his own personal interests.”

The approach outlined by Lord Woolf in para [44] was expressly approved by the House of Lords. Lord Steyn at para [29] said this:

“Counsel for the appellant submitted that the civil standard of proof is applicable to the Secretary of State and to the Commission. This argument necessarily involves the proposition that even if the Secretary of State is fully entitled to be satisfied on the materials before him that the person concerned may be a real threat to national security, the Secretary of State may not deport him. That cannot be right. The task of the Secretary of State is to evaluate risks in respect of the interests of national security. Lord Woolf MR expressed the point with precision”.

Lord Steyn then quoted the passage from para [44] of Lord Woolf MR’s judgment that I have already set out.

Lord Hoffmann said much the same thing at paras [48]-[49]:

“[48] … it was wrong to treat the Home Secretary’s reasons as counts in an indictment and to ask whether each had been established to an appropriate standard of proof. The question was not simply what the appellant had done but whether the Home Secretary was entitled to consider, on the basis of the case against him as a whole, that his presence in the United Kingdom was a danger to national security. When one is concerned simply with a fact-finding exercise concerning past conduct such as might be undertaken by a jury, the notion of a standard of proof is appropriate. But the Home Secretary and the Commission do not only have to form a view about what the appellant has been doing. The final decision is evaluative, looking at the evidence as a whole, and predictive, looking to future danger. As Lord Woolf MR said, ante, p 168, para 44:

“the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion.”

[49] My Lords, I will say at once that I think that on each of these points the Court of Appeal were right.”

He added at para [56]:

“In any case, I agree with the Court of Appeal that the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant’s conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant’s deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee.”

Now that, of course, was a case involving questions of national security. But Lord Hoffmann’s observations in particular are quite plainly of much wider application and seem to me as equally applicable in the present context as in the context with which he was concerned. After all, in evaluating the risk that a convicted murderer may, if released, kill again in some homicidal frenzy the Tribunal is concerned with the same kind of harm, equally random albeit on a much more limited scale, as the Secretary of State is concerned with when considering, for example, whether a possible terrorist suicide bomber is a danger to national security. To the victim and to his friends and relatives, after all, it may not really matter very much whether he has been pushed under a ‘tube’ train by a mentally disturbed murderer or blown up on the same platform by a terrorist.

For present purposes the most obvious analogy is, perhaps, that of the Parole Board. And there a very similar approach has consistently been adopted in relation to its functions. As Lord Bingham of Cornhill said in R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, at para [16]:

“I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment.”

In R (Sim) v Parole Board [2003] EWCA Civ 1845, [2004] QB 1288, at para [42] Keene LJ said:

“the concept of a burden of proof is inappropriate where one is involved in risk evaluation.”

In R (Brooks) v The Parole Board [2004] EWCA Civ 80 at para [28] Kennedy LJ, having said that “In so far as it is relevant to do so the Parole Board applies the civil standard of proof”, added:

“It is concerned with the assessment of risk, a more than minimal risk of further grave offences being committed in the future, and … ultimately the burden of proof has no real part to play.”

Having then referred to what Keene LJ had said in Sim, Kennedy LJ continued:

“What the Parole Board must do is to decide in the light of all of the relevant material placed before it whether it is satisfied as envisaged by section 28(6)(b) of the 1997 Act.”

In R (Henry) v the Parole Board [2004] EWHC 784 (Admin), Sullivan J, having referred to these passages in Sim and Brooks,continued at paras [12]-[13]:

“[12] In assessing risk, the Board is reaching a judgment about an issue that is inherently incapable of proof. The difference between the position contended for by the claimant and that contended for by the defendants is rather more akin to a difference of emphasis as to how an inherently uncertain issue should be resolved. That said, there is, at least in principle, a clear distinction between a presumption that a prisoner shall continue to be detained unless he satisfies the Board that he no longer presents a danger to the public, and a presumption that he shall be released unless the Secretary of State satisfies the Board that the prisoner continues to present a danger to the public: see paragraphs 44 to 51 of Sim.

[13] It is common ground that in practice, this distinction will be of no consequence in the great majority of cases. The Board will simply be asking itself, what is the extent of the risk? However, the distinction is capable of affecting the outcome in a minority of borderline cases where matters are so finely balanced that the Board is unable to decide whether the risk on release would be too high or sufficiently low.”

At this point it is convenient to return to sections 72 and 73.

As Mr Bowen correctly observes, under section 72 the Tribunal has to consider a number of issues, including:

In my judgment issue (i) involves matters which are, in principle, susceptible to proof and which therefore fall to be determined by reference to the civil standard of proof ‘on a balance of probability’. Whether someone is suffering from some (and if so what) form of mental illness or mental disorder is a question of fact – present fact. The nature and degree of a patient’s condition, although involving questions of diagnosis and matters of medical opinion, are nonetheless matters of present fact which are, in principle, amenable to proof in the same way as any other matter of past or present fact. Bryan CJ in 1477 may have observed (I translate the law French) that “the Devil himself knoweth not the thought of man” (YB 17 E4 Pasch fo 2 pl 2), but it has been trite law ever since 1885, as Bowen LJ famously said in Edgington v Fitzmaurice (1885) 29 ChD 459 at p 483, that:

“the state of a man’s mind is as much a fact as the state of his digestion.”

Issues (ii), (iii) and (iv), however, of their very nature raise quite different questions. In large measure they are all looking not just to the present but also to the future. More significantly, they are all issues which involve an evaluative judgment and which are not susceptible to a defined standard of proof. They are, in my judgment, issues to be determined not by the application of the civil (or indeed any other) standard of proof but, as I have already indicated, by a process of evaluation and judgment. The Tribunal is not here concerned so much with finding facts which are capable of exact demonstration but rather with a process of judgment, evaluation and assessment which involves the appreciation and evaluation of inherently imprecise and often differing or conflicting psychiatric evidence. Moreover the Tribunal is necessarily peering into the future and, particularly in the case of a restricted patient, seeking to evaluate, assess and minimise future risks – risks of medical relapse and, it may be, risks of re-offending.

Mr Bowen submits boldly that all of the discharge criteria are susceptible to a standard of proof; indeed he submits that both ‘treatability’ and ‘dangerousness’ are susceptible to a standard of proof higher than the ordinary civil standard of proof. I cannot agree. With the exception of issue (i) the inquiry into these matters, to quote Lord Steyn’s words, “does not involve a standard of proof: it is an exercise of judgment or evaluation.”

I recognise, as Mr Bowen pointed out, that the Strasbourg Court held in Reid v United Kingdom (2003) 37 EHRR 211 at para [73] that the burden – what the Court called the “onus” – lies on the detaining authority to establish all the relevant criteria, including in particular whether the patient is “amenable to treatment”. And the onus on the detaining authority is, as Mr Bowen also pointed out, to establish those criteria ‘on the merits’: HL v United Kingdom (unreported) para [137]. But this does not carry with it, as Mr Bowen would have it, any particular implication either in relation to the standard of proof or, indeed, as to whether it is appropriate to talk in terms of a standard of proof at all.

Mr Bowen, referring to what Keene LJ said in R (Sim) v Parole Board [2003] EWCA Civ 1845, [2004] QB 1288, at para [50], says that there has to be a ‘default position’ and submits that the burden of proof which he says rests upon the detaining authority necessarily means that there has to be a corresponding standard of proof which must, as a minimum, be the ordinary civil standard of proof.

I accept that there has of course to be a default position, and I shall return in due course to consider what it is under section 72 and section 73. And I accept, as I have said, that the burden lies on the detaining authority to establish the relevant criteria. I do not enter into jurisprudential debate, and the point is, if you like, semantic but, in common with Lord Bingham of Cornhill, Keene LJ, Kennedy LJ and Sullivan J, I prefer in this context not to use the expression ‘burden of proof’. The more accurate and appropriate expressions are either ‘onus’ – the word which, as I have said, was used by the Strasbourg court in Reid v United Kingdom (2003) 37 EHRR 211 at para [73] – or ‘persuasive burden’.

But the fact that there is an onus or persuasive burden on the detaining authority does not, with all respect to Mr Bowen, necessarily carry with it some corresponding standard of proof, let alone the civil standard of proof. Not merely is there no support in principle or authority for that contention; it is contrary to authority at the highest level. Let me give two examples to which, as it happens, I have already referred.

Under section 1(1)(b) of the Crime and Disorder Act 1998 the applicant local authority or Chief Constable seeking an anti-social behaviour order has the burden – the onus or persuasive burden – of persuading the court that such an order “is necessary to protect persons … from further anti-social acts”. If the applicant fails to persuade the court of that matter, then the application will fail and no order will be made. But as we have already seen, Lord Steyn was clear in R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, at para [37] that “The inquiry under section 1(1)(b) … does not involve a standard of proof: it is an exercise of judgment or evaluation.”

The other and even more illuminating example is to be found in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, where the House of Lords considered the differing requirements under sections 31, 38, 43 and 44 of the Children Act 1989. Under section 43(1)(a) the court can make a child assessment order “if, but only if, it is satisfied that … the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm”. Under section 44(1)(a) the court can make an emergency protection order “if, but only if, it is satisfied that … there is reasonable cause to believe that the child is likely to suffer significant harm”. Under section 38(2) the court cannot make an interim care order “unless it is satisfied that there are reasonable grounds for believing” that the child is suffering, or is likely to suffer, significant harm. Under section 31(2) the court can make a full care order “only … if it is satisfied … that the child … is suffering, or is likely to suffer, significant harm”. Now in each case the applicant local authority has the onus, has the persuasive burden, of persuading the court so that it is “satisfied” of the relevant matter. If the court is not so “satisfied” then the application will fail and no order will be made. But only when one gets to an application under section 31(2) is it appropriate to talk of a standard of proof. What has to be established under section 43(1)(a) is “reasonable cause to suspect” and, under sections 44(1)(a) and 38(2), “reasonable cause to believe” or, what amounts to the same thing, “reasonable grounds for believing”. That is the language of suspicion, not proof: see the discussion by Lord Nicholls of Birkenhead at p 590D-H. The test under section 31(2) is quite different. What has to be established is that the child “is suffering, or is likely to suffer, significant harm”. As Lord Nicholls put it at p 590H: “This is the language of proof, not suspicion. At this stage more is required than suspicion, however reasonable based.” What that ‘more’ is, what section 31(2) requires, is, as we have seen, proof according to the ordinary civil standard of proof.

So the fact that the applicant has the burden – the onus, the persuasive burden – of persuading the court of something before he can obtain the order he seeks does not of itself mean that he necessarily has to persuade the court of that ‘something’ to some standard of proof. It all depends upon the particular statutory or other context.

The other point which, incidentally, emerges from In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 is, as we have seen, that the mere fact that a statute requires the court to be “satisfied” of something before it makes an order does not mean that it necessarily has to be satisfied to the civil standard of proof. It all depends upon the nature of the matter about which the court has to be satisfied. As Lord Lloyd of Berwick said at p 576D:

“As for the word “satisfied” … it … is a word with a range of meanings covering the criminal burden of proof (“satisfied so as to be sure”) through the civil burden of proof (“satisfied on a balance of probabilities”) to a synonym for “conclude or determine.” … It means that the court must make up its mind.”

The significance of this will be readily apparent, given the repeated use of the phrase “not satisfied” in both section 72 and section 73. This is something I will return to below.

As Mr McCullough points out, there is nothing in either section 72 or section 73 which necessarily requires proof of past facts. Plainly, however, as he accepts, questions of past fact may fall to be considered in reaching a determination on those issues which do fall to be decided. How then should the Tribunal go about evaluating such matters?

The proper approach, in my judgment, is that indicated in the passages from In re H and Rehman which I have already set out in paragraphs [90]-[93] above. If there is some specific allegation of past conduct which is being relied upon then the Tribunal must decide as a matter of fact, and applying the ordinary civil standard of proof, whether the allegation has been proved. If it is not proved then it cannot of itself be the basis for any continuing detention of the patient. As Lord Nicholls of Birkenhead said in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at pp 590B-591D:

“there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future … if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide … more is required than suspicion, however reasonably based … a court’s conclusion that the threshold conditions are satisfied must have a factual base, and … an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened.”

But however many allegations of past conduct may fail to be proved, this does not mean that the Tribunal is bound to order the patient’s discharge. For fundamentally, the Tribunal is looking to what may happen in the future rather than to what has happened in the past. And typically it will be looking at a very substantial volume of material and a very wide range of facts, all of which feed into the evaluative risk-assessment exercise which I have already described.

To adopt the words of Lord Nicholls of Birkenhead in In re H at p 591E and of Lord Woolf MR in Rehman at para [44], the Tribunal in applying itself to each of the various criteria in section 72 or section 73, as the case may be, must “examine the case as a whole”, recognising that “the range of facts which may properly be taken into account is infinite”; it must attach “appropriate weight” to “all the relevant facts when coming to an overall conclusion”; and it must reach an assessment or judgment on the particular issue by asking itself whether or not, adopting “a global approach” and having regard to the “cumulative effect” of all the relevant facts, it is “satisfied”. That, after all, is what the Act itself requires.

Under section 72 the Tribunal has to ask itself the following questions when considering an application for the discharge of a patient who is subject to a hospital order but is not a restricted patient:

The ‘default position’ under section 72, therefore, is this. If the Tribunal is not satisfied of the matters referred to in either 72(1)(b)(i) or section 72(1)(b)(ii) – if, in other words, the detaining authority fails to establish its case under section 72(1)(b)(i) and fails to establish its case under section 72(1)(b)(ii) – then the Tribunal must direct the discharge of the patient. In any other case it may direct his discharge.

Under section 73 the Tribunal has to ask itself the following questions when considering an application for the discharge of a restricted patient:

The ultimate ‘default position’ under section 73, therefore, is this. If the Tribunal is not satisfied of any of the matters referred to in either limb of section 72(1)(b) or in section 73(1)(b), then it must direct the conditional discharge of the patient.

I have already summarised the concerns of MIND as set out in its evidence. Ms Markus further illustrates those concerns by drawing my attention to the decision of the Court of Appeal, Criminal Division, sitting reconstituted as a Divisional Court of the Administrative Court, in Kiernan v Harrow Crown Court [2003] EWCA Crim 1052. In that case the challenge was to the making of a hospital order under section 37. What Scott Baker J described as “dramatically different” views about the defendant had been expressed by various psychiatrists. On the one side Drs Annear and Naguib said that the defendant was suffering from mental illness of a nature or degree that made it appropriate for him to be detained in hospital for medical treatment; on the other side Drs Barrett and McClintock said that he was not – and in the view of Dr McClintock never had been – mentally ill. Scott Baker and Astill JJ quashed the hospital order, preferring the evidence of Drs Barrett and McClintock to that of Drs Annear and Naguib.

What is important for present purposes are some observations Scott Baker J made at paras [26]-[29] in the course of examining Dr Naguib’s evidence:

“[26] … He accepted that the sources of information on which he relied were hearsay information. It was put to him, and he accepted, that there was really a hierarchy of sources from which a psychiatrist in these circumstances ought to look to decide whether the applicant was suffering from mental illness. This included, first of all, the interview; secondly, the inpatient assessment, the notes and discussions with the staff who were looking after him in the hospital; and, thirdly, other sources.

[27] He accepted that in the circumstances of this case one really obtained very little, if any, assistance from the first two sources, and that one was really down to the third source in finding any useful information at all. It is generally accepted that in diagnosing mental illness, which is not an easy task in borderline cases, the usual route to overcome uncertainty is to have the patient assessed as an inpatient in a mental hospital. That is what happened in this case. But, in my judgment, the doctors are, in reality, no wiser after the applicant has spent many months in hospital then they were before he was admitted. The plain fact is that on any objective assessment he has not displayed any signs of mental illness whilst in hospital.

[28] The problem with other sources, as illustrated in this case, is to assess the reliability of what the doctors are being told. It is not only a question of the reliability of the facts that they are being told but also their interpretation of those facts. In my judgment, it is perfectly clear that doctors in these circumstances are not bound by rules of evidence, so that they can only accept material that would be admissible in the courts; certainly, not. They are entitled to look at the whole picture and, indeed, they should look at the whole picture. But they have to exercise judgment over material which is of first, second or even third hand hearsay as to the weight that can be attached to it.

[29] In my judgment the problem in this case has really come about because Dr Naguib and, more particularly, Dr Annear, who has really been the main doctor in respect of treatment of the applicant, has given far too much weight to material that is of an extremely dubious nature. This late in the day, it is undesirable for me to go in great detail into all the matters about which I have particular concern. But one example is to be found in a statement in Dr Annear’s most recent report of 28th February of this year, when he says:

“When [the applicant] first came into hospital, he had stated the tap water was poisoned.”

If, in truth, the applicant said that, that would be important evidence as to delusional belief. However, no one has been able to draw attention to any contemporaneous record in the medical notes to that effect. I would have thought that a matter of that importance would inevitably have been recorded contemporaneously in the very full notes that are before the court.”

Ms Markus points to that as a stark illustration of the dangers of relying upon “material … of an extremely dubious nature” or “second or even third hand hearsay”, and of attaching too much weight to incidents not properly recorded in contemporaneous notes.

The Tribunal, of course, is fully entitled to rely on hearsay evidence. As I have already mentioned, rule 14(2) of the Mental Health Review Tribunal Rules 1983 in effect dis-applies the normal rules of evidence. And the procedure of the Tribunal is to a significant extent inquisitorial. How then should the Tribunal avoid the potential difficulties?

It seems to me that helpful guidance is to be found in a number of analogous contexts. I go first to R (Director of Public Prosecutions) v Havering Magistrates’ Court [2001] 1 WLR 805 where the Divisional Court had to consider the question of how the court should approach an allegation that someone has breached his bail conditions. At para [41] Latham LJ said:

“What undoubtedly is necessary is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertion at the one end of the spectrum which is unlikely to have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on and answer that material. If that material includes evidence from a witness who gives oral testimony clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion.”

In R (Sim) v Parole Board [2003] EWCA Civ 1845, [2004] QB 1288, at para [57], that passage was said by the Court of Appeal to be “generally applicable to proceedings before the Parole Board when it is assessing risks”. Keene LJ went on to say:

“Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole Board taking such evidence into account. It should normally be sufficient for the board to bear in mind that that evidence is hearsay and to reflect that factor in the weight which is attached to it. However, like the judge below, I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the individual case.”

In R (Brooks) v The Parole Board [2004] EWCA Civ 80 the Secretary of State revoked the claimant’s licence and recalled him to prison essentially because of allegations made against him by his partner, Shirley Langhorne. There was a hearing before the Parole Board which Miss Langhorne refused to attend. The Board refused to order the claimant’s release. Relying in particular on the last two sentences of the passage from the judgment of Keene LJ in R (Sim) v Parole Board [2003] EWCA Civ 1845, [2004] QB 1288, at para [57] which I have quoted above, the claimant sought to challenge the decision of the Board. His claim failed. Explaining why, Kennedy LJ said this at paras [37]-[39]:

“[37] I, like Keene LJ in Sim can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination before it is taken into account at all. As Elias J indicated in the present case, that could require production of the complainant if someone in the position of Shirley Langhorne was willing to testify, but as Keene LJ went on to point out, the requirements of fairness depend on the circumstances of the individual case, and in my judgment there was nothing unfair about the decision of this panel to proceed as it did. As I have made clear, neither the Parole Board nor the Secretary of State did anything to inhibit the claimant’s opportunity to test by cross-examination the allegations of Shirley Langhorne before those allegations were taken into account, but in the particular circumstances of this case that opportunity was not worth much, and the claimant’s solicitor was entitled to decide not to pursue it more than she did.

[38] Once the situation has been properly analysed in relation to the non-attendance of Shirley Langhorne, and the decision to proceed without her, it seems to me that there can be little difficulty in deciding whether in the absence of Shirley Langhorne the panel should have had regard to her allegations of rape. The duty of the panel was to decide whether it was satisfied that it was no longer necessary for the protection of the public that the claimant should be confined. In making that assessment it was entitled, and indeed bound, to have regard to all relevant information placed before it, including hearsay (see Sim) provided that the claimant was given a proper opportunity to respond, and that opportunity was in fact given. The situation in relation to consideration of the allegations is just the same as it would have been if Shirley Langhorne were dead or physically unable to attend, and, as Elias J pointed out, if the allegations of Shirley Langhorne were not to be considered in her absence that must mean that the claimant could not even be asked to comment upon them.

[39] What the panel had to do was to evaluate the allegations carefully in the context of the rest of the information before it, taking fully into account the absence of cross-examination, and that exercise was carefully and fully performed”.

In my judgment the Tribunal should adopt the same approach, explained in Sim and Brooks, as the Parole Board.

If the Tribunal is relying upon hearsay evidence it must take into account the fact that it is hearsay and must have regard to the particular dangers involved in relying upon second, third or fourth hand hearsay. The Tribunal must be appropriately cautious of relying upon assertions as to past events which are not securely recorded in contemporaneous notes, particularly if the only evidence is hearsay. The Tribunal must be alert to the well-known problem that constant repetition in ‘official’ reports or statements may, in the ‘official’ mind, turn into established fact something which rigorous forensic investigation shows is in truth nothing more than ‘institutional folk-lore’ with no secure foundation in either recorded or provable fact. The Tribunal must guard against too quickly jumping to conclusions adverse to the patient in relation to past events where the only direct evidence is that of the patient himself, particularly where there is no clear account in contemporaneous notes of what is alleged to have happened. In relation to past incidents which are centrally important to the decision it has to take the Tribunal must bear in mind the need for proof to the civil standard of proof; it must bear in mind the potential difficulties of relying upon second or third hand hearsay; and, if the incident is really fundamental to its decision, it must bear in mind that fairness may require the patient to be given the opportunity to cross-examine the relevant witness(es) if their evidence is to be relied on at all.

It goes without saying, and I hope that no Tribunal would need reminding, that any decision under section 73 or section 72 is a matter of extreme gravity, not merely for the patient but also, particularly under section 73, for the general public.

There is something particularly frightening in the thought of someone who is not mentally ill being locked up compulsorily in a mental institution. That, after all, is why we react with added horror to totalitarian regimes which use incarceration in mental institutions as a form of punishment. However awful the concentration camp or the gulag, unjustified punitive incarceration in an asylum somehow seems even worse. I am not concerned to analyse the rationality of such views. It is enough that they are commonly held. After all, as we all know, there are many in our society who would rather ‘do time’ in a prison than a mental hospital. But, on the other hand, the public is understandably alarmed, and can be forgiven for feeling outraged, when a convicted murderer freed by the Tribunal kills again.

The interests at stake before the Tribunal are on any view compelling. Mr Bowen and Ms Markus understandably lay stress on the interests of the patient, focussing in particular on the patient’s claims not merely to liberty but also to autonomy and bodily integrity, though also drawing attention to the ‘stigma’ point made by Burger CJ in Addington v Texas (1979) 441 US 418. Liberty, autonomy and bodily integrity are interests which traditionally have received a high degree of protection under the common law and are now afforded the added protections conferred by the Convention: see, for example, the comments of Lord Reid in S v McC, W v W, [1972] AC 24 at p 43 (“English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”) and more recently, in relation to autonomy and bodily integrity, what I said in R (Burke) v General Medical Council (Official Solicitor intervening) [2004] EWHC 1879 (Admin), [2005] 2 WLR 431, at paras [54]-[56], [59] and [62].

Moreover, as Mr Bowen and Ms Markus point out, the autonomy rights of a detained patient are severely constrained because, so long as the requirements of the Act are complied with, a patient can be forcibly treated (for example by the administration of powerful psychotropic drugs) even where he retains the capacity to give or refuse consent and refuses his consent in circumstances where at common law that refusal would be determinative: see R (B) v Dr SS and others [2005] EWHC 86 (Admin).

But there are powerful interests that may pull in the other direction. Not merely, if most obviously, the public interest but also, as Mr McCullough and Mr Ward rightly point out, the patient’s own interests. It is, after all, no kindness to someone who in truth needs it to deny him the treatment which may not only protect him from the risk of harm or self-harm but also, if he is ‘cured’, remove or reduce the prospects of future compulsory detention. The Act, as I have said, seeks to protect the interests of the individual whose ability to act in his own best interests is impaired. And, as Burger CJ so tellingly put it in Addington v Texas (1979) 441 US 418, “freedom” for a mentally ill person can be purchased at too high a price.

Moreover, as Mr McCullough correctly observed, it is crucial to note that the interests of the patient, as objectively ascertained, and the interests of the public will frequently not be in conflict: the discharge of the law’s ‘paternalistic’ function vis-à-vis the patient may not be in tension with its ‘safety’ function vis-à-vis the public. It is, after all, only if these functions conflict that the ‘balancing exercise’ described by Lord Phillips of Worth Matravers MR in R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2001] EWCA Civ 415, [2002] QB 1, and by Elias J in R (Secretary of State for the Home Department) v Mental Health Review Tribunal (PH interested party) [2002] EWHC 1128 (Admin), comes into play.

Bearing in mind the gravity – typically both for the patient and for the public – of the issues with which it is grappling, the Tribunal will, of course, always want to bring to its task the “particular care and consideration” which Lord Clyde referred to in Reid v Secretary of State for Scotland [1999] 2 AC 512 at p 539F and will, as I put it in HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam), [2003] 2 FLR 408 at paras [24], [46], want to scrutinise the evidence “with especial care”.

It follows that these applications for judicial review fail and must be dismissed. There was no misdirection by the Tribunal in the case of DJ and the only misdirection by the Tribunal in the case of AN was favourable to the patient.