R (on the application of L) v West London Mental Health NHS Trust & Ors

By this claim for judicial review the Claimant challenges the decision to admit him to Broadmoor, a high security hospital pursuant to a transfer from Stockton Hall, a medium security hospital, in which he was detained pursuant to a hospital order made by Chichester Crown Court under section 37 of the Mental Health Act 1983 (“the 1983 Act”) following convictions in June 2008 for offences including kidnapping and dangerous driving. The decision is challenged as being unlawful because it was taken following a procedure which failed to comply with common law standards of procedural fairness and/or article 6 of the European Convention on Human Rights. The claim raises important issues as to whether decisions to transfer detained patients from medium security to high security psychiatric hospitals are subject to common law duties of fairness and if so the extent of such duties and/or whether the current arrangements for the taking of such decisions violate Article 6 in that they constitute final determinations of the patient’s civil rights and, taken as a whole, do not provide for access to adjudication by an independent decision taker.

The Claimant is a patient detained under the 1983 Act who was transferred from Stockton Hall Hospital, which provides medium security psychiatric services, to Broadmoor Hospital, which provides high security psychiatric services. The Defendant is responsible for the provision of high security psychiatric services at Broadmoor pursuant to paragraph 3(2)(b) of the West London Mental Health National Health Service Trust (Establishment) Order 2000. The interested party is responsible for the provision of medium security psychiatric services at Stockton Hall Hospital.

In June 2008 the Claimant was detained pursuant to section 37 of the 1983 Act following conviction in the Crown Court for various offences and in October 2010 he was transferred from Stockton Hall Hospital to Broadmoor. The Secretary of State for Health has an overriding duty under section 4(1)(b) of the National Health Service Act 2006 (previously under section 4 of the National Health Service Act 1977) to provide high security psychiatric services for persons who in his opinion require treatment under conditions of high security on account of their dangerous, violent or criminal propensities. Such services may be provided only at hospital premises at which services are provided only for such persons.

The Secretary of State was not an original party to these proceedings. However at the conclusion of the two day oral hearing on 19 April 2012 I indicated that in view of his potential interest in some of the issues raised in this case I would be prepared to entertain submissions from him if so requested. On 27 April 2012 he indicated a desire to make written submissions which were duly received on 22 May 2012. I gave permission to the Claimant to serve written submissions in response which were received on 31 May 2012 and to the Secretary of State to serve written submissions by way of rejoinder, which were received on 2 July 2012.

The Claimant is 24 years old. He has a history of childhood physical and sexual abuse, including an assault at the age of 14 by a man who put an axe to his throat and attempted to rape him, and also longstanding mental health problems.

He was first referred to psychiatric services at the age of 9 when he was diagnosed as having conduct disorder and attention deficit hyperactivity disorder (ADHD). He had two brief admissions to psychiatric hospitals, in the first of which he was transferred to a locked ward under section 2 of the 1983 Act, from which he was discharged within one week. He has a history of severe and frequent deliberate self-harm from the age of 14. This has included breaking bones, lacerations, overdoses, cutting the tendons in his feet and inserting objects into his penile urethra leading to a number of operations. According to him he has made a number of serious suicide attempts including attempting to hang himself in prison by making a ligature and tying it to a tap in the sink. He has a history of drug use including cannabis from the age of 18 and crack cocaine and heroin.

The Claimant also has a criminal record from the age of 13. When he was 14 he received a four month detention and training order for burglary, theft, handling stolen goods and criminal damage. At the age of 16 he received further convictions for burglary, theft, aggravated vehicle theft and other offences for which he received two further detention and training orders. At the age of 18 he received a custodial sentence for aggravated vehicle taking and thereafter was convicted of escaping from lawful custody. There was an incident in which he was reported as having picked his way out of handcuffs.

In February 2007 he committed the offences of false imprisonment, theft and dangerous driving. He was remanded in custody at Feltham Young Offenders Institution for 15 months and in June 2008 following conviction for those offences he was ordered to be detained under section 37 of the 1983 Act under the legal classification of mental illness. Whilst on remand he had been assessed as suffering from Antisocial and Borderline Personality Disorders, amounting to psychopathic disorder within the 1983 Act, and persisting features of ADHD and was assessed as proving a risk to himself and others. It was recommended that he should be admitted to a medium secure unit.

Between first being sent to a detention centre when aged 15 and his arrest on remand in February 2007 the Claimant had only been in the community for a total of approximately 9 months, the longest period out of custody having been a maximum of 7 weeks, the shortest 3 days.

According to the victim the circumstances of the false imprisonment offence were that the Claimant arrived at his flat in an agitated state in possession of a knife, ordered the victim to wrap brown parcel tape around his ankles and then tied him to a chair using parcel tape and electrical cables and gagged him with a cloth and a dog lead. On leaving he threatened the victim that he would kill him together with his sister, nephews and nieces if he phoned the police. He took the keys to the victim’s car, in which he was arrested four days later following a high speed chase on the M4. On arrest he told police that he had been tied up and abused and had wanted to kill himself. He claimed that the false imprisonment offence had been precipitated by him waking up at the victim’s flat and finding him performing oral sex on him.

Following the order for his detention pursuant to section 37 of the 1983 Act the Claimant was initially detained at Ashen Hill Medium Secure Unit. He remained there until his transfer to Stockton Hall medium secure psychiatric hospital on 4 December 2009. During his time at Ashen Hill the Claimant was recorded as having self harmed on numerous occasions and exhibited aggressive and violent behaviour towards patients and staff. He also absconded twice, once in November 2008 and on a second occasion in May 2009. On the first occasion he was returned by the police after going to the house of the victim of the index offence and when detained by the police was recorded as having said that he had come back to kill the victim. On the second occasion he did not go to the victim’s house and returned voluntarily to Ashen Hill.

Following his absconding in November 2008 the Claimant was assessed by Dr Noon, a consultant forensic psychiatrist instructed by the Claimant’s solicitors, as demonstrating a high level of risk to others, his absconsion and return to the victim’s house being of grave concern. Dr Noon was the responsible clinician for the Claimant at Ashen Hill for the period following his admission.

In November 2008 following the absconding incident Ashen Hill referred the Claimant for admission to Broadmoor. The Claimant was assessed by a psychologist and a consultant nurse from Broadmoor who interviewed him on 26 November 2008. They recorded that a month before he absconded the Claimant removed a plank from his room to keep as a weapon and a week later gained access to the roof of the unit with the help of another patient. The absconding incident was preceded by threats to three members of staff who escorted him to the local hospital after he self-lacerated with a piece of glass and claimed that he had put a further piece of glass into his penile urethra. It was recorded that Dr Noon’s opinion, notwithstanding his assessment that the Claimant represented a high level of risk to others, was that he had been wrongly given a section 37 order without restriction under the classification of mental illness and that he had told the assessors that he had approached the CPS to ask for a review of the Claimant’s sentence. Although he found him to fill the diagnostic criteria for anti-social borderline and paranoid narcissistic personality disorders in addition to having histrionic traits, he had found no deficit in concentration or attention consistent with a diagnosis of ADHD in adulthood or any evidence of mental illness.

Dr Noon was recorded as having said that while on the ward the Claimant manipulated other patients to extort money from them and bullied them physically by pushing and kicking them. There had been no physical assaults on staff. The circumstances of his absconsion showed a great deal of planning – selling his television to obtain money and telephoning the unit to mis-inform them of his location. Dr Noon expressed his concerns about the level of murderousness expressed by the Claimant about his victim. The Claimant had told him that he had unprotected sexual intercourse with his girlfriend whilst AWOL and now had concerns that she might be pregnant. Dr Noon had tried to involve the police for assaults on other patients and for the threats to kill expressed towards his victim but the police had been unwilling to press charges.

In interview the Claimant told the Broadmoor assessors that he was surprised that he had not hurt the victim during the assault on him constituting the index offence: “I scared him and that was enough for me… at the time – to see the look in his eyes.” He reiterated that he would return to the victim’s address because he hadn’t hurt him so that he could “stick him in hospital for a time” and later said he could kill him if he saw him again.

The Broadmoor assessing team in an assessment report regarding the Claimant’s suitability for admission to Broadmoor, which was also signed by Dr Larkin, a consultant forensic psychiatrist at Broadmoor, concluded that there was clear evidence that the Claimant met the diagnostic criteria for several personality disorders including Borderline Narcissistic Anti-social. They concluded that due to his recent absconsion, his continued assertion of an intention to escape to inflict further serious harm on his victim, threatening behaviour towards staff, including the secreting of weapons, and physical bullying of patients he required detention with high security services as he continued to pose grave and immediate danger to others. It was said that he met the operational criteria for the DSPD as he suffered from several severe personality disorders and had a PSL – R score of at least thirty. The assessing team accordingly recommended that the Claimant be offered a place at Broadmoor.

In a psychology assessment report prepared by Dr Drennan, a consultant clinical psychologist dated 8 December 2008, reference was made to the Claimant having secured a piece of wood as a potential weapon in October 2008 and his expressed intent to form weapons to use against at least one man against whom he had a grudge. That level of intent to cause physical harm to fellow patients was said to be very difficult to manage safely at medium secure level. The view was expressed that the Claimant might therefore require detention in conditions of high security, and that he would require long-term treatment, mostly in conditions of security, in order to reduce the risk of serious offending behaviour to a level that might be manageable in the community.

Notwithstanding the views expressed by the Broadmoor assessing team, the Broadmoor Admission Panel which met on 10 December 2008 to consider whether the Claimant was suitable for admission to Broadmoor unanimously decided that he should not be accepted. On balance they felt that he did not meet the dangerous and serious personality disorder (DSPD) admission criteria. In addition taking into account all the circumstances of the case it did not seem to the panel appropriate that the Claimant should be detained in a high security hospital for treatment.

It was suggested that if the Claimant were to remain in hospital for treatment it might be worth giving consideration to treatment in a more distant unit so that if he were to abscond the potential risk to the victim would be less immediate. It might also be appropriate to involve the police if there were specific threats to kill. I interpose to comment that, on its face this strikes me as a somewhat surprising response to the serious nature of the Claimant’s return to the victim’s house and his statement to the assessing team that he would return to his address so that he could put him in hospital for a time and that he felt that he could kill him if he saw him again. The Panel also said that it could not understand why or how the Claimant ended up in hospital on a section 37 order and that it might well be worth pursing an appeal against that decision if it was made unlawfully or in error. No explanation was given for that conclusion.

On 21 January 2009 a psychiatric report prepared by Dr Zachariah, the specialty registrar to Dr Noon, for a hospital managers hearing expressed the opinion that the Claimant’s personality disorder resulted in abnormally aggressive and seriously irresponsible behaviour and that he could be classed as suffering from a psychopathic disorder within the meaning of the 1983 Act as amended. His mental disorder continued to remain of a nature and degree requiring his continued treatment in hospital primarily for his own health and safety but also for the protection of others, specifically the victim of the index offence. The opinion was expressed that he required at least the present conditions of medium security and that he continued to require treatment within the present level of security for the management of risk both to himself and to others. Accordingly Dr Zachariah was not supportive of his discharge from detention under section 37 of the 1983 Act.

In May 2009 the Claimant made an application to the First Tier Tribunal (Health, Education and Social Care Chamber) Mental Health. As explained below in more detail the Tribunal has power both to order discharge of a patient detained under the 1983 Act and to recommend his transfer to another hospital. I did not see his application form so that there was no direct evidence as to what he formally applied for. However it is apparent from the handwritten reasons for the Tribunal’s decision dated 23 July 2009 signed by the Tribunal judge that when interviewed by the Tribunal’s medical member before the oral hearing the Claimant told him that he was not looking for a discharge but wanted to be moved from Ashen Hill to Llanrth Court, a private medium security hospital in South Wales. At the beginning of the hearing the Claimant’s solicitor who represented him at the hearing confirmed that that remained the position.

The Claimant’s reason for wishing a transfer was that his family who lived in Wales could not get to see him at Ashen Hill because of work and family commitments. The Claimant was recorded as having agreed in evidence that he needed further treatment. The hearing lasted 3 hours and the Tribunal received written and oral evidence. As well as Dr Zachariah’s report dated 21 January 2009, the Tribunal received a report from Dr Noon dated 29 June 2009 in which he referred to incidents of self-harm, the Claimant inserting glass and metal into his penis in April 2009. Although he had had gradually increasing leave with a reduced number of escorts and without handcuffs to attend dental appointments, in May 2009 he had persuaded staff to allow him to have 30 minutes of escorted leave within the hospital grounds from where he absconded with a substantial amount of money. After a weekend away he presented himself to the police saying he had not gone back to the previous victim’s home but had consumed alcohol and illicit drugs. He was recorded as taking medication to help intrusive thoughts of a violent nature. Following his return, he was recorded as having threatened to cut a member of staff’s face with a blade which he had secreted in his mouth. All leave had been stopped and he had limited leave within the secure perimeter.

Dr Noon confirmed the opinion, which had been expressed by his registrar in January 2009, that the Claimant continued to suffer from a mental disorder and that his personality disorders were associated with abnormally aggressive and seriously irresponsible conduct so that he could be classed as suffering from a psychopathic disorder within the old meaning of the 1983 Act. Dr Noon’s opinion was that the Claimant should continue to remain in hospital under section 37 both for his health and safety and for the safety and protection of others. If he were discharged at that stage even with extensive support he would rapidly return to previous behaviours and place both himself and others at risk.

The Claimant’s solicitor did not challenge Dr Noon’s diagnosis of mental disorder or the need for the Claimant to remain in hospital for ongoing treatment which was needed both for his own safety and health and for the protection of others. The hearing concentrated on the possible merits of the possible transfer of the Claimant to Llanrth Court.

The Chairman recorded that the different accounts of the index offence were not explored at the hearing although the Claimant made clear that he maintained the account he had previously given. None of the matters reported by Dr Zachariah was disputed at the hearing and the Tribunal accepted what he said.

Dr Noon gave evidence that there was no medium secure hospital in South Wales which had a unit which dealt specifically with personality disorders and thus he did not favour a move there at present. He understood that the Claimant had telephone contact with relatives on his mother’s side although none of them had come to visit the Claimant at Ashen Hill. He had however written to the clinical director of the medium secure hospital in South Wales to ask if the Claimant might visit there to enable his family to visit him there. He accepted that there might be an argument for moving him to South Wales at some point in the future if it was shown that he was able to have contact with his family there that was productive.

The Tribunal concluded that the statutory criteria for continuing detention in hospital were clearly established. It was satisfied that appropriate medical treatment was available for the Claimant at Ashen Hill and it had no reason to doubt that it would be available in other hospitals. The tribunal expressed the view that Ashen Hill was obviously right to consider whether the Claimant might benefit from receiving regular visits from family members if he were to be moved to South Wales and expressed the hope that trial visits would be arranged within a relatively short time. However it did not think it right on the basis of the material before it to make a positive recommendation that the claimant should be transferred to Llanrth Court or any other hospital in south Wales at that time.

The formal decision of the Tribunal was that it did not consider it appropriate to discharge the Claimant under its discretionary powers, it being satisfied that he suffered from mental disorder of a nature and degree which made it appropriate for him to be liable to be detained in hospital for medical treatment and that it was necessary for the health or safety of the Claimant or for the protection of other persons that he should receive such treatment. It formally declined to recommend that he be transferred to another hospital.

On 4 December 2009 the Claimant was transferred from Ashen Hill to Stockton Hall medium secure hospital in York. This followed an assessment of the Claimant by a clinical team from Kneesworth Personality Disorder Service as posing considerable security issues including reports of tampering with locks allowing him to lock himself in and not be observed. The referral to Stockton Hall was initially intended to be for a short in patient period until he could be transferred to Kneesworth House.

On 15 March 2010 the Claimant made a second application to the Mental Health Review Tribunal. There was a 3 hour hearing of the Tribunal at Stockton Hall. It considered written evidence from Dr Damas-Mora the Claimant’s then responsible clinician, a nurse and a senior social worker and it heard evidence from the latter two and also from Dr Vandenabeele and the Claimant himself.

The decision of the Tribunal was that the Claimant should not be discharged. It also made no recommendation pursuant to its statutory power under section 72 (3) (a) of the 1983 Act to which I refer below. In its written reasons for its decision the Tribunal recorded that the Claimant had a forensic history and a long history of self-harm which had continued until about four months previously. He had clearly been a substantial management problem. Having been in York for some five months he had evidently settled somewhat and was currently reasonably compliant with his care plan. While he principally sought a discharge it was stated that he also wished the Tribunal to make a recommendation for his transfer to a low secure unit in South Wales where his family was. The Tribunal stated that it could not make any such recommendation on that occasion because no such unit had yet been identified but it took the view that it would be appropriate for steps to be taken in that direction. In the meantime it stated that the Claimant was appropriately placed in conditions of medium security at Stockton Hall. The Section must remain in force for the health and safety of the Claimant himself and for the protection of other persons. The long history of self-harming and criminal behaviour was said to demonstrate an unacceptable risk in the context of a premature discharge.

On 17 June 2010 there was a meeting of the Stockton Hall self-styled Independent Hospital Management Committee to review the renewal of the Claimant’s detention under the 1983 Act. He had notified the hospital that he wished to contest the renewal. A report dated 14 June 2010 from Dr Vandenabeele, the consultant psychiatrist responsible for the Claimant’s care at Stockton Hall since 12 April 2010, was prepared for the purpose of the renewal hearing. It made reference to the further hearing in front of a Mental Health Tribunal on 10 May 2010 which made recommendations for explorations to take place as to whether or not the Claimant’s care could be delivered at a hospital closer to his family home, to the Claimant having subsequently changed his mind saying that he wanted to remain at Stockton Hall but then changing his mind again and saying that he would wish to be transferred to a hospital closer to his family.

Dr Vandenabeele expressed the opinion that while it was reassuring that the Claimant had been able to sustain significant periods of time not engaging in self-harming behaviours, there was evidence of periods, especially when aroused, of him engaging in aggressive behaviour and showing marked lack of concern for the feelings of others. Since the end of May the clinical team had noticed a deterioration in his presentation. There had been several incidents during which he had inserted foreign bodies into his urethra requiring surgical intervention and on several occasions he had also presented as more aggressive including making attempts to assault staff, throwing a remote control at a duty doctor, becoming racially abusive and episodes during which he would kick objects. In view of the ongoing risk of self harm he was placed on high levels of observations and managed on one on one observations. The view was expressed that he was currently suffering from a mental disorder as defined within the 1983 Act which was of a nature and degree warranting his detention in hospital and that were his detention not to be continued he would seek immediate discharge from hospital which would be likely to result in a rapid deterioration in his mental state while increasing risk to himself and others.

There was before the court a checklist for the managers’ review which recorded that the review hearing was attended by a representative of the Claimant as well as Dr Vandenabeele, the approved social worker and a nurse. In addition to Dr Vandenabeele’s report and a social worker report it recorded that there was also produced a managers hearing report.

Under the heading “Grounds for continued detention” the following four questions were all ticked:

“Is the patient still suffering from mental disorder? If so, is the disorder of a nature or degree which makes it appropriate to receive medical treatment in hospital? Is it necessary for the health or safety of the patient or for the protection of others that such treatment be received? And is appropriate medical treatment available to the patient?”

The decision of what was described as the review panel was stated as being that the Claimant should not be discharged. It was signed by three hospital managers. The reason for the decision was stated as being that having read all the reports and interviewed relevant experts the managers agreed that the Claimant was suitably detained as he met the criteria to be detained as he suffered from a mental illness.

On the evening of Saturday 31 July 2010 the Claimant handed over an improvised implement in the form of a broken glasses handle which had been sharpened and filed down as a weapon to a member of the nursing staff at Stockton Hall. He said that a named fellow patient was in danger of being attacked and that another piece of glasses handle was somewhere easily accessible by other patients who were willing to attack the patient. According to the notes taken by the nurse to whom this was reported, when asked to elaborate further and help staff to locate the weapon the Claimant refused and asked to be moved to a different ward or to have the identified patient moved to a different ward. On being told that that was not going to happen, the Claimant was recorded as having reiterated that the other patient was going to get seriously hurt. The Claimant maintained this stance to another nurse who was informed of what he had said.

A decision was taken to nurse the Claimant in isolation until the makeshift weapon was found through a lockdown pursuant to hospital policy.

At 1 a.m. on Sunday 1 August 2010 a lockdown was implemented. The notes recorded the Claimant as then disclosing that he had hidden the other piece of the glasses handle in the drain in the secure garden area. The notes recorded that a search was carried out in the drain and the object retrieved.

On 2August 2010 Dr Vandenabeele recorded in his notes that the Claimant had been reviewed in seclusion following an incident whereby he threatened to assault another patient and that while in seclusion he continued to present as irritable and unpredictable. He continued to be a risk to others and for that reason continued to warrant management in seclusion.

On 3 August 2010 Dr Vandenabeele recorded in his notes that the Claimant had been seen together with the ward manager regarding further clarification in respect of weapons found on the unit. The Claimant was recorded as having said that he had made these devices from his glasses and that several other patients had been involved in the plan to attack the identified patient. The Claimant was recorded as having said that he planned to stab the patient with the second weapon. Dr Vandenabeele therefore wrote that there was evidence of the Claimant hiding and making weapons as well as inciting/recruiting other patients. In view of the risks Dr Vandenabeele wrote that he considered the need for referral to high security. In the meantime the Claimant was to remain on line of sight in view of the risk of assaults, self-harm and his vulnerability to assault by others who perceived that he had mentioned their names.

On 4 August 2010 Dr Vandenabeele on behalf of Partnerships in Care, the Interested Party, who run Stockton Hall hospital, wrote to the referrals Panel at Broadmoor asking it to assess the Claimant as to his suitability for admission to conditions of high security at Broadmoor. He enclosed two Mental Health Tribunal reports providing a detailed account of the Claimant’s background history and referred to his index offence and his long history of engaging in acts of deliberate self-harm, often involving him inserting objects into his urethra. He recorded that in the first part of 2010 he had had a relatively settled period during which he did not harm himself for some four months but that since May 2010 there had been an escalation in such behaviour. He also said that the Claimant had a history of displaying hostile and aggressive behaviour while in hospital and had on numerous occasions made threats of physical violence towards stuff and damaged hospital property and also had a history of absconding.

However the reasons given for the referral were said to be the aftermath of the incident that occurred on 31 July 2010. This was said to have begun after a period of several days when the Claimant had taken a dislike towards another patient. The incident was described in the following terms:

“… [He] subsequently manufactured weapons in order to assault the said patient. The weapons were manufactured from the arms of his glasses and were essentially a plastic handle with a protruding metal sharpened pen of some one and a half to two inches long. [The Claimant] kept one of these instruments in his own possession and hid the second one in the garden area of the ward and at the time also invited several other patients on the unit to use this weapon against the patient he had taken a dislike to, should the opportunity arise. When the weapons were discovered by staff, [the Claimant] later disclosed that it had been his intention to stab the other patient in the neck. He considered this an appropriate response after he felt that the other patient had been “winding him up”.”

It is not clear what if any was the source in the contemporary notes for the statement that the Claimant had invited several other patients to use the weapons against the patient he had taken a dislike to, unless it was intended to be a paraphrase of the statement in his note of 3 August 2010 that several other patients had been “involved” in the plan to attack the identified patient, which he cited in that note as evidence of the Claimant inciting/recruiting other patients. The first note to refer to the incident dated 31 July 2010 recorded the Claimant as having reported that the second glasses handle was somewhere easily accessible by other patients who were willing to attack the identified patient.

Dr Vandenabeele added that it was also of relevance that not long after the incident when the weapons were moved by members of the nursing team the Claimant also made an attempt to punch the above mentioned patient. He expressed the view that although the Claimant had not physically assaulted the other patient the risks and the fact that he was making weapons as well as inciting other patients constituted a grave risk.

A central part of the claim for judicial review is based on three criticisms of this letter. The first is that it is said to have presented as a fact that the Claimant had manufactured the weapons in order to assault the patient. The second, is that the letter made no reference to the fact recorded in contemporary nursing notes that the Claimant handed in the first weapon voluntarily to a nurse and revealed the location of the second weapon to the staff contrary, it is said, to the impression given in the letter that the weapons were discovered by the staff without assistance from the Claimant. Third the letter made no reference to the fact, again recorded in the contemporary nursing notes, that, having handed in the first weapon, the Claimant asked for either the identified patient or himself to be moved to a different ward and that, that having been refused, he revealed the location of the second weapon. Taken together it is said that these three aspects of the incident as recorded in the contemporary notes at least arguably suggest that there was, contrary to the Claimant’s own statements to members of staff, no actual intention to use the weapons against the identified patient. Rather the intention was to use the weapons as a means of putting pressure on the hospital to achieve the Claimant’s desire to be separated from the identified patient.

In a witness statement dated 26 October 2010 Dr Vandenabeele denied that there were serious omissions of evidence put before the Admissions Panel in relation to the weapons incident. He stated that the Claimant refused to disclose the whereabouts of the second weapon, triggering a full lock down of the ward and a search was required before it was located in a communal area. Although that account is partly supported by the contemporary nursing notes dated 31 July 2010 and 1 August 2010, it omitted reference to two points recorded in those notes. The first was that when asked to help staff locate the second weapon the Claimant had requested to be moved wards or to have the other patient moved. The second was that after the shut down was implemented, the second weapon was retrieved by the hospital staff as a result of the Claimant disclosing to them that he had hidden it in the drain in the secure garden area.

On 23 August 2010 Dr Sengupta, a consultant psychiatrist at Broadmoor prepared a psychiatric assessment report for the Broadmoor hospital admissions panel to assist the panel to consider the Claimant’s suitability to be admitted to Broadmoor maximum secure hospital.

In preparing the report Dr Sengupta said that he had access to the Claimant’s extensive history and a number of identified reports, of which only three post-dated the decision of the Broadmoor admissions panel in December 2008 that the Claimant should not be accepted. They were the report of Dr Zachariah dated 21 January 2009 and Dr Noon dated 29 June 2009 to which I have referred and a psychology report prepared by Dr Drennan dated 25 September 2009.

The reasons for referral to maximum security were said to be because of the Claimant’s physical violence and risk to others. Although reference was made to the Claimant’s wider offences, the physical violence and risk to others appeared to be based on the incident relating to the hidden weapons. It was described in the following terms:

“L is referred to maximum security because of his physical violence and risk to others. It was reported that, in Stockton Hall medium secure unit, L had taken a particular dislike to another patient on the ward and secreted and fashioned a weapon. The weapon was manufactured from the arms of his glasses and was initially a plastic handle with a protruding metal sharpened pen of 1 ½ to 2 inches long. It appeared that he sharpened it while hiding it in his hands and rubbing it against the walls while making a telephone call. He kept one of these instruments in his own possession and hid the second one in the garden area of the ward. At the time he also invited several other patients on the unit to use the weapon against the same patient. He later disclosed that he intended to stab the patient in the neck. Although I have not had sight of the instrument I was informed that it was strong enough to stick on the nursing desk.”

This is a shorter account of the incident than that which appeared in Dr Vandenabeele’s report. It made no reference to the facts that the Claimant handed the first weapon to a nurse, made a request for him and/or the identified patient to be separated and disclosed the whereabouts of the second weapon to the staff when that request was refused.

It is not clear on what materials Dr Sengupta’s account of the incident was based. On its face it largely tracks the language of the account in Dr Vandenabeele’s report, although the reference to the weapon apparently having been sharpened while the Claimant hid it in his hands and rubbed it against the walls while making a telephone call appears neither in that account nor in the contemporary notes before the court. In his introduction to the report Dr Sengupta said that in preparing it he had access to the Claimant’s “extensive history and several reports as follows”, which did not in terms include the Claimant’s hospital contemporaneous notes on the incident. In the body of the report Dr Sengupta stated that he interviewed the Claimant who described the incidents of violence, both on the ward and in the community as a matter of fact without little apparent emotion attached to it. This may or may not include the preparation of the weapons.

In the course of argument Mr Hyam, counsel for the Defendant, told me on instructions that Dr Sengupta had access when preparing his report to the notes of the incident and invited me to infer that he must have read them because of the fact that the reason given by Dr Vandenabeele for requesting the Claimant’s admission was the incident. I observe that whether or not he read the notes his report is open to the same criticisms made by the Claimant of Dr Vandenabeele’s referral letter. I further observe that although Broadmoor’s referral procedure provides that the assessing consultant is permitted to attend the Admissions Panel and to contribute to the presentation of the case, although he is not a Panel member, Dr Murray, the clinical director of Broadmoor, stated in his first witness statement that the assessing doctor does not attend. It is thus to be inferred that the information about the incident available to the Panel was limited to that contained in the Vandenabeele letter and the Sengupta report.

In his report Dr Sengupta summarised the Claimant’s past psychiatric and forensic history. He referred to the opinion of Dr Morris on 23 November 2009 at Kneesworth House Hospital personality disorder unit that, although he recognised the need for the Claimant’s admission, the Claimant might in the context of a ward of patients with anti-social personality disorder in Kneesworth House revert from his deliberate self-harm activity to becoming involved in concerted anti-social activity and to Dr Morris’ recommendation that the Claimant should go to Stockton Hall until a bed became available in a ward suitable for patients with borderline personality disorder.

Dr Sengupta described his interview with the Claimant. He recorded the Claimant as saying that he already knew a number of patients at Broadmoor and was looking forward to coming to Broadmoor and seemed to have gathered information from his “friends in Broadmoor”. Although the Claimant highlighted the therapeutic benefit of admission to Broadmoor his understanding of such therapeutic work appeared somewhat superficial, detached and aloof. Dr Sengupta made no reference to the Claimant expressing any objection to being transferred to Broadmoor. He recorded him as having acknowledged that his anger leads to violence towards others and as being keen to highlight his risk of interpersonal violence.

Dr Sengupta’s risk assessment of the Claimant was that given his diagnosis he would continue to remain a very high risk of future self-harm. In relation to risk to others he said that the Claimant presented with a history of interpersonal violence. Of note were three very serious incidents of violence, the first being the index offence, when he took his victim hostage and subjected him to both physical and psychological torture as said to have been evidenced in the witness statements. On the second occasion he absconded from medium security and arrived back at his victim’s house with a plan to kill him. Thirdly “the most recent incident of fashioning and manufacturing a weapon with a view to either inciting other patients or seriously assaulting a patient in his neck in Stockton Hall Hospital”. Dr Sengupta concluded that with a history of interpersonal violence and high anti-social features the claimant was at high risk of future violence.

Reference was made to the Claimant having subverted security and absconded both from prison and a medium secure unit on several occasions: on one occasion while on an escorted trip to the hospital managing to unlock his handcuffs and escape, on another threatening his hospital escorts and absconding and on a third absconding while on thirty minutes escorted ground leave in Ashen Hill hospital. Dr Sengupta expressed the view that the Claimant posed a high risk of subverting security and absconsion.

Dr Sengupta’s opinion was that there was little doubt that the Claimant suffered from severe borderline and anti-social personality disorder resulting in abnormally aggressive and seriously irresponsible behaviour and that there was evidence of symptoms of adult ADHD. Given his serious risk of harm to others (the index offence of hostage taking, inflicting serious psychological and physical harm to his victim, his escape from custody by unlocking himself from handcuffs and again by threatening members of staff to arrive at his ex-victim’s house and finally manufacturing a weapon in medium security “to assault a specific patient”, Dr Sengupta considered that the Claimant posed a grave and immediate risk to others. He recommended his admission under conditions of maximum security. He considered it unfortunate that the Claimant had not received a restriction order at the time of sentencing.

Dr Sengupta’s report was stamped with a signed statement that he had no objection to the Claimant or his representative, clinicians assessing the Claimant for transfer or clinicians at the receiving hospital seeing his report.

There was in addition a social work pre-admission report dated 1 September 2010 prepared by a locum forensic social worker which recommended admission for a period of assessment. The only material said to have been read by the author of the report were the letters of Dr Vandenabeele and Dr Sengupta. The description of the incident included the following: “One of these weapons was kept in the [Claimant’s] possession whilst the other was hidden in the garden area of the ward. [The Claimant] made no secret of his intentions to harm the patient he had taken a dislike to, inciting several other patients to use the hidden weapon on him should the opportunity arise. When the weapons were discovered the [Claimant] admitted his intention was to stab the other patient in the neck, which he felt was an appropriate response as the other patient had been winding him up. He later attempted to punch the fellow patient.” The opinion was expressed that while it could be argued that the risk posed by the Claimant to his fellow patient could and should be managed by Stockton Hall hospital or by transfer to Kneesworth House hospital as had been originally proposed, the concerning factor was the escalation of risk both to himself and others as described in the various reports.

There is no formal record or certificate of the decision of the Broadmoor Admissions Panel. In a letter dated 17 September 2010 but dictated on 15 September 2010 Dr Das, the clinical lead of the South of England Directorate of Broadmoor and the Chairman of the Admission Panel, wrote to Dr Vandenabeele informing him that his referral had been considered by the Broadmoor Admissions Panel. He said that the panel agreed that there was overwhelming evidence of a personality disorder (dissocial, borderline and high psychopathy) and evidence of self-harm. He said that the panel had unanimously supported the provision of a bed in high security for the Claimant and that following discussions with Broadmoor Personality Disorder service it had been agreed that a bed should be offered in the main hospital in the first instance. Dr Vandenabeele was asked to make arrangements for the Claimant’s transfer and, with the Claimant’s consent, to inform his nearest relative as soon as possible of the proposal to transfer him to a high secure hospital and the reasons for the move.

There was also before the court a document called an Admission Panel Decision Form which referred to the panel date as 2 September 2010. Six panel members were named, although their positions or roles were not specified. A list of documents before the panel was identified. The only ones which post-dated the weapons incident were the reports of Dr Sengupta, Dr Vandenabeele and the social worker’s report. The panel decisions and reasons were described as follows by the Chairman in handwritten notes:

“Overwhelming evidence of a personality disorder, dissocial, borderline and high psychopathy; and evidence of self-harm. Fits the DSPD criteria. He did so in the last assessment by DSPD Unit at Broadmoor. To be considered by the DSPD Panel for admission prior to responding to Stockton Hall. A paper review may be sufficient. Unanimous decision of the panel.”

There was also a file note dated 15 September 2010 prepared by the Chairman of the Panel, Dr Das, referring to a discussion with Dr Romero, the PD service regarding the Claimant’s referral. The South of England and London Directorate Panel was said to be of the unanimous view that the Claimant should be admitted to high security, the reasons for admission being described as:

It was recorded that Dr Romero was in agreement that the Claimant should be admitted to a South of England admissions ward at the first instance and progress on to one of the PD wards in the Paddocks in a few months time. The Chairman recorded that he had therefore advised a Margaret Kerfoot to proceed with the admissions process for Henley admissions/High Dependency ward.

It thus appears that the decision to recommend that the Claimant should be admitted to Broadmoor was taken by the Panel on 2 September 2010 and that the decision to admit him was taken on 15 September 2010 in or following the conversation between Dr Das and Dr Romero.

On 19 August 2010 Ms Jolly wrote to the admissions panel secretary at Broadmoor stating that she understood that the Claimant had been referred to Broadmoor and had had an assessment visit on 17 August 2010. She wrote to request as a matter of urgency a copy of the application to Broadmoor and all supporting documentation, details of communications with the Claimant’s catchment area medium secure unit and responsible PCT in respect of the referral, the name of the consultant psychiatrist from Broadmoor who assessed the Claimant on 17 August 2010 and details of any staff members from Stockton Hall who participated in the assessment, a copy of the assessment report and the date of the admission Panel that would consider the application. She also requested permission to attend the Panel as an observer in accordance with paragraph 6.10 of the Admissions Panel Operational Policy.

Ms Jolly was at the time employed by the Howard League for Penal Reform and had represented the Claimant for over three years on various matters. By the time of the hearing she had moved to Pierce Glynn solicitors and continued to represent him from there, and latterly from the merged firm of Deighton Pierce Glynn.

In a witness statement Ms Jolly stated that her request to attend the Panel was refused. On 1 September 2010 Broadmoor responded to Ms Jolly informing her that the Claimant had been assessed by Dr Sengupta and that his case would be considered by the Broadmoor Admissions Panel on 2 September 2010. A form authorising Broadmoor to release the Claimant’s medical records on payment of copying charges was attached. The letter said that Dr Murray, the medical director of Broadmoor, instructed the author to say that paragraph 6.10 of Broadmoor’s Operational Policy was primarily intended for trainees to observe the internal process and that it had never been Broadmoor practise to allow attendance by referring agents, either doctors or others, at the decision making meeting in respect of their particular case. However if she wished to attend an admissions panel to observe the general principles that would be a matter for negotiation and subject to the appropriate considerations regarding the confidentiality of the cases to be discussed. She was provided with contact details for Dr Murray. In a subsequent letter dated 16 September 2010 from the Howard League to Broadmoor it was stated that the request to attend the Admissions Panel meeting had been declined by Dr Murray on 20 August 2010.

As already mentioned in his interview with Dr Sengupta on 17 August 2010 the Claimant is recorded as having said that he already knew a number of patients at Broadmoor and was looking forward to coming there, although his understanding about the therapeutic work involved appeared superficial.

On 15 September 2010 Ms Jolly telephoned Broadmoor and was informed that a decision had been made to admit the Claimant to the South of England Directorate, one of the two at Broadmoor, the other being the Severe Personality Disorder Directorate (DSPD).

On 15 September 2010 Ms Jolly submitted a signed application for access to the Claimant’s records specified in her letter dated 19 August 2010 stating that they were required urgently. In a written statement served in support of the application for judicial review Ms Jolly stated that on 15 September 2010 the Howard League wrote to Broadmoor asking that the decision be withdrawn and the transfer suspended to enable the claimant to make representations pending a new decision and requesting a response by 4pm on 23 September 2010. However that letter was not before the court. On 16 September 2010 the Howard League wrote to Broadmoor recording that on 15 September they had been informed that after consideration of the Claimant’s referral by the Broadmoor Admissions Panel he had been accepted for admission. They stated that the Claimant instructed them that he did not wish to be transferred to high secure conditions and did not believe that he met the criteria for admission to such conditions. He believed that he could continue to progress and develop in medium secure conditions through access to appropriate therapeutic services.

The Howard League letter dated 16 September 2010 was written without sight of Dr Sengupta’s assessment report dated 23 August 2010 or Dr Vandenabeele’s report dated 4 August 2010. The letter expressed concern that the admission panel might not have had up to date and accurate information or the relevant thoughts and observations of the Claimant. It was asserted that he should be entitled to make representations to the admission panel regarding the referral of his case to Broadmoor. Reference was made to the Broadmoor Admission Guidelines and to the non-exhaustive list of behaviours which that document says should be present in a particular case when considering an admission. In the absence of disclosure of the information before the admission panel and the reasons for the admission decision it was said to be unclear what information was before the panel for each of the specific criteria reviewed or what weight was given to any of the criteria and whether any additional criteria had been considered.

On a cursory review of the background information produced by the Claimant’s current placement concern was expressed about the accuracy and detail of the information before the Panel.

The letter asked for an opportunity to assist the Claimant in the submission of representations to the admission panel to ensure that the representations addressed the concerns of the referrer hospital, access to those documents records and information before the admissions panel, a stay of the Claimant’s transfer pending a further review of the referral by the referrer and a further review by Broadmoor based upon the Claimant’s representations with a freshly constituted Admissions Panel, alternatively an agreement that Broadmoor should treat such a review as an appeal in accordance with paragraph 8.0 of the admissions panel operational policy.

Alternatively if the case was too urgent for further review the letter asked for provision of the documents records and information before the admissions panel, the reasons for the admission and the reason for not staying the transfer pending further submissions and a reconsideration.

A response together with disclosure of all documents and an agreement to stay the Claimant’s transfer was sought by 23 September 2010 with agreement for representations to be lodged within 14 days of disclosure.

On 20 September 2012 Ms Jolly received a copy of the letter dated 17^th September 2010 from Dr Das of Broadmoor to Dr Vandenabeele informing the latter of the decisions of the Broadmoor Admissions Panel and enclosing Dr Sengupta’s report. On 20 Sept 2010 Ms Jolly, according to her first witness statement, made a further request for the supporting documentation referred to in Dr Sengupta’s report and for the written decision or confirmation that the letter of Dr Das constituted the decision.

On 22 September 2010 Ms Jolly wrote a letter before claim to the Defendant recording that they had been informed by the Claimant that he was due to be assessed that morning by the Broadmoor nursing team. It is of note that in her summary of the factual background she wrote that at the beginning of August 2010 the Claimant had made a weapon and handed it to staff “stating that he had been intending to use it on another patient”.

The letter challenged the decision to admit the Claimant to Broadmoor on the ground that it was unlawful, irrational and/or a breach of Article 8, further or alternatively on the procedural ground that it was unfair and/or a breach of Article 6 and 8 of the ECHR.

As to substance, Dr Sengupta’s conclusion that the Claimant presented with a history of interpersonal violence was challenged as being inaccurate, ignoring relevant considerations and being against the weight of the relevant evidence. It was accepted that the index offence subjected the victim to considerable psychological distress but noted that it did not result in any physical injuries. As to the absconsion when the Claimant returned to the victim’s house it was said that the Claimant denied saying that he was planning to kill the victim or having such a plan. Neither that incident nor the manufacture of the weapon resulted in any violence.

As to the manufacture of the weapon, it was asserted that there was considerable relevant information concerning the incident which had not been considered in Dr Sengupta’s report. In particular there was no reference to the fact that the Claimant had voluntarily handed over the weapon which he had made to staff and told them where the other one was hidden. That, it was said, did not suggest an intention to use the weapon. The Claimant had made the weapon after trying to get help from the staff over several days to move either him or the other patient away from each other. The staff had persistently ignored his requests. His efforts included calling the Howard League and asking it to make representations to the ward that something should be done. On doing so the Howard League had been informed that nothing could be done. It was asserted that the Claimant’s fabrication of a weapon and disclosure of the weapon to staff appeared to have been more of a cry for help. This was said to be supported by the response of the staff who did not deem it necessary to move either the Claimant or the other patient. It was further asserted that Dr Sengupta’s report failed to mention that the Claimant currently had escorted ground leave at Stockton Hall which would not be permitted if his risk to others were grave and immediate, particularly given that his second absconsion from Ashen Hill took place during escorted ground leave. (This was challenged by the Interested Party as inaccurate by reference to contemporaneous notes on the Claimant’s Nursing Cover Plan.) It was submitted that Dr Sengupta erred in attributing weight to the risk of violence as self-reported by the Claimant when the evidence was clear that his history of interpersonal violence was in fact insignificant.

It was submitted that the decision to admit the Claimant to Broadmoor was disproportionate and/or a breach of Article 8 because lesser measures could have been taken to reduce the risk posed by the Claimant to others. In particular the risk posed to the other patient at Stockton Hall had been removed by moving him to a different ward. It was submitted that the Claimant’s Article 8 rights were engaged by the decision to admit him to Broadmoor in that it involved a loss of his current home and relationships with staff and patients, the Claimant currently being in a long-term relationship with a prisoner and receiving regular phone calls from her which would not be possible in high secure conditions. His Article 8 rights were also said to be engaged by the more restrictive and supervised regime at Broadmoor.

As to procedure, it was asserted that the decision to admit the Claimant to Broadmoor engaged both common law requirements of procedural fairness and/or the procedural protections of Article 6 in that it exposed him to a more restrictive and heavily monitored regime, had a knock on effect on the likelihood of his being released directly into the community and involved his civil rights, including his rights to visits, phone calls, letters, leaves, out door exercise and relationships. It was submitted that he should have been provided as a minimum with the right to make representations in advance of the decision being made. Despite being clinical the decision concerned an assessment of risk as a matter of fact. Fairness required that he should have an opportunity to comment on the evidence and correct any factual or legal inaccuracies.

In the event that the decision were urgent based on the facts of the case it was asserted that the Claimant would have the right to make representations after the decision had been made. However it was not accepted that in this case the decision was urgent. The event triggering the referral occurred nearly two month earlier and the Claimant had since been granted escorted ground leaves and removed from “line of sight” observations.

To meet the requirements of fairness it was requested that the Claimant should have full disclosure of the decision, reasons and supporting evidence for the admission to high secure conditions on which he could make representations; that he should be entitled to an oral hearing, particularly in the event that the issues were complex and/or there was any conflicting evidence; he should have the right to legal representation to assist with the preparation of the representations and to provide advice, guidance and representation and he should be provided a right of appeal to an independent and impartial person or persons.

Accordingly the Defendant was expected to confirm that the Claimant’s transfer to Broadmoor would be suspended pending resolution of the matters raised in the letter, to provide full disclosure of the decision, reasons or supporting material, to confirm that the decision would be withdrawn pending representations from the Claimant, to confirm that a fresh decision would be made by a differently constituted admissions panel with a hearing if necessary and to confirm that he would have a right of appeal to an independent and impartial person. In addition disclosure was sought of any evidence or information not yet seen by the Howard League on which the Defendant wished to rely.

A substantive response was sought by 4 p.m. on 24 September 2010, the next day, due to the urgency of the situation. There had been no response to earlier correspondence and Ms Jolly stated that they were aware that the Claimant could be transferred to Broadmoor at any time.

On 24 September Dr Murray responded to Ms Jolly confirming that the letter from Dr Das to Dr Vandenabeele constituted the decision and that the reasons for the decision were set out in that letter. He agreed to send by recorded delivery the next day the supporting evidence which he said amounted to more than 100 pages of prior reports, witness statements from the time of the index offence and other correspondence. He said that he had spoken that day to Dr Vandenabeele who confirmed that in his view the Claimant’s transfer to Broadmoor should wait no more than one week since the situation whereby the Claimant anticipated that he was to be transferred to Broadmoor shortly and had nothing to lose was inherently clinically high risk. He said that Broadmoor proposed to admit the Claimant early in the week beginning 4 October.

Also on 24 September the Defendant’s solicitors wrote to the Howard League asking for a further 10 working days to respond to the letter before claim. In response on the same day Ms Jolly indicated that she would be happy to agree to the extension provided that the Defendant agreed not to transfer the Claimant to Broadmoor until at least 3 working days after the Defendant’s response. She indicated a willingness to submit any representations the Claimant wished to make during the two weeks extension requested by the Claimant. Alternatively she offered an extension till 28 September 2010.

On 27 September 2010 Ms Jolly received disclosure of the documents before the Broadmoor Admissions Panel with the exception of the witness statements relating to the index offence.

On 30 September 2010 the Defendant’s solicitors informed Ms Jolly that it had now been decided that the Claimant would be admitted to Broadmoor on 6 September [I infer that this was an error and should have been October] on the basis that Stockton Hall considered such transfer could not for clinical and safety reasons be further delayed but should take place promptly. Reference was made to the Claimant’s rights consequential upon his detention such as applications to the Tribunal for discharge and to the power of the tribunal in appropriate cases to make extra statutory recommendations in favour of transfer to other hospitals, affording patients who consider they are inappropriately placed in conditions of high security the opportunity to make representations against such placements. It was noted that Ms Jolly’s criticism of Dr Sengupta’s report was not backed up by any clinical evidence on the subject.

On 30 September 2010 the Claimant issued these proceedings for judicial review challenging the decision to transfer him to Broadmoor high security hospital. The relief sought was an order quashing the decision to admit him to Broadmoor, a declaration that the Defendant’s decision to do so was in breach of Article 8 and/or Article 6 of the ECHR and /or was procedurally unfair, damages, costs and further or other relief. In addition an application was made for interim relief in the form of an injunction restraining the Defendant from admitting the Claimant to Broadmoor until conclusion of the proceedings.

On 30 Sept 2010 an injunction was granted by Mr CMG Ockleton, sitting as a Deputy High Court Judge, restraining the Defendant from transferring the Claimant to Broadmoor or any other high security hospital until determination of these proceedings or further order. Time for the Defendant’s acknowledgement of service was abridged to expire on 7 October 2010 and the matter was ordered to be listed for a rolled up hearing of an oral permission and if granted application for judicial review in the week beginning 11 October 2010. He observed that it was important for a conclusion to be reached in the matter with minimum delay rather than allowing interim arrangements to continue indefinitely so that a rolled up hearing was appropriate.

In her witness statement dated 30 September 2010 in support of the application for interim relief Ms Jolly repeated the contention that the material before the Broadmoor Admissions Panel disclosed a number of serious omissions and inaccuracies which might have influenced the Panel’s decision. In particular reliance was placed on the absence of reference to the fact that the weapons were discovered because the Claimant voluntarily brought them to the staff’s attention. More detail was given as to the attempts made by the Claimant before the incident to be separated from the identified patient. It was said that he had been alerting staff for several days to the problems he was having with the patient asking to be moved away from him. It was said that on 29 July 2010 he telephoned Ms Jolly, explained the problems he had been having with the patient and how he wished to avoid it escalating into more serious conflict and saying that he had asked the staff repeatedly to separate him and the patient but had been told that this could not be done.

She said that on the same day she contacted the ward manager asking him to keep the Claimant and the identified patient apart but was told that that would not be possible and that the Claimant had to learn strategies for dealing with conflict. He said that it was possible that the Claimant was using the issue as an excuse to avoid doing his Dialectical Behavioural Therapy. Reliance was placed on the fact that the staff did not separate the Claimant from the identified patient even after he drew their attention to the weapons which, it was submitted, showed that they did not view the incident as indicating that the identified patient was in grave and immediate danger from the Claimant. They were not separated until 2 August 2010 when they were involved in an altercation.

Reference was made to the psychology report by Dr Drennan which was before the panel which was said to support the view that the Claimant frequently sought help before problems escalated. That, combined with the information omitted from the referral, it was submitted, suggested that the Claimant’s risk could be dealt with by alternative measures such as responding to his concerns and warning signs. It was submitted that the material before the panel disclosed an over reliance on and uncritical acceptance of the Claimant’s self-reported violent tendencies. There was a failure to take into account the Claimant’s acknowledged unreliability in self-reporting and evidence that he might have a tendency to “fake bad”. It was submitted that there were alternative measures available for dealing with the Claimant’s risk other than transfer to high secure conditions at Broadmoor. By way of example his risk of absconsion could be managed by using handcuffs, secure holds and a secure vehicle on escort outside the hospital (the circumstances of his first absconsion), and restricting his leaves outside the secure perimeter (the circumstances of his second absconsion).

As to procedure, it was submitted that the Claimant had not been given the opportunity to put forward all or any of the matters relied on in Ms Jolly’s witness statement prior to the decision to transfer him. Ms Jolly had not had the opportunity to take the Claimant’s full instructions on the material which had only been received on 27 September 2010 which it was said was likely to raise further issues that the Claimant would seek to put forward for the consideration of the admissions panel.

As to the Claimant’s current position it was asserted that he was no longer under staff observation and had been given his ground leaves back several weeks earlier, indicating that he was no longer considered to be a very high risk by staff at Stockton Hall hospital. It was submitted that there was no immediate urgency for the transfer such as to outweigh the prejudice which it would cause him.

In a witness statement dated 30 September 2010 the Claimant said that he did not want to go to Broadmoor as he was worried about the environment and the strict regime which he worried might make his health worse. He said that he was concerned that the information the hospital had about him was inaccurate and that that might have affected the decision to admit him to hospital. He said that he wished that he had had an opportunity to look at the information before the Broadmoor Admissions Panel and to make representations to the hospital about the referral and assessment. He said that while his case was reviewed he would like to remain at Stockton Hall until Broadmoor had reconsidered his admission to high secure conditions.

However on 1 October 2010, the day after the injunction was granted, the Claimant withdrew his application for interim relief with the agreement of the Defendant in a letter to the Court dated 1 October 2010. Accordingly on 7 October 2010 by consent it was ordered that the injunction granted by Mr Ockleton should be lifted and on 6 October 2010 the Claimant was transferred to Broadmoor.

Also on 6 October 2010 the Claimant made an application to a Mental Health Tribunal. However he withdrew the application on 2 November 2010.

In an updated skeleton argument dated 14 December 2010 Mr Southey QC on behalf of the Claimant confirmed that the Claimant no longer challenged his placement in conditions of high security but submitted that that did not mean that this claim was academic.

In a second witness statement dated 9 February 2012 the Claimant stated that he was not currently seeking to challenge his detention in high secure conditions. However he said that he did not like being in Broadmoor and found the life there very restrictive compared to being in a medium secure hospital.

He said that he did not like the fact that all his mail at Broadmoor was monitored. That had led to some of his letters being withheld. In particular he had formed a relationship with a female patient at Stockton Hall who had been transferred back to prison after a few months. They continued writing to each other regularly but when he got to Broadmoor her letters were withheld from him. He was very upset about that. In September 2011 he found out that she had died in prison. He had still not received the letters that she had sent him before she died. He still got letters from her mother and from his own family but he did not like the fact that they were all read before he received them.

He did not like the number of searches at Broadmoor. For a long time he had a rub-down search every time he went in and out of his room although that had ceased. However he had a rub down search when going in and out of visits and on a weekly basis and his room was searched weekly by a delegated search team. He found this intrusive. He had spent four months in seclusion at Broadmoor from September to December 2011 during which time he was locked in all the time. Now that he was not in seclusion he was not locked in but could only come out of his room when the staff said he could. That was usually three times a day. There was only one other patient on his ward who was allowed to associate and he saw no other patients. He was not allowed a television in his room. He was allowed to go to the gym but in practice it was difficult to arrange because it was hard to get enough staff so he hardly ever went.

It was hard to get to the phone on his ward because he was not always allowed out of his room. When in seclusion he did not get to the phone very often. His phone calls were limited to 15 minutes and he was not allowed to receive incoming calls. He missed getting calls from his family and friends. He used to speak to his friends a lot when he was in medium secure conditions but had stopped speaking to them now because they were unable to ring him. He saved his phone calls for ringing his family because it was harder to get to the phone in Broadmoor. All his phone calls were recorded and some of them were listened to, which he did not like.

He said it was difficult being around some of the other patients at Broadmoor, some of whom had committed very serious crimes like rape and child abuse and he did not like talking to them. He ended up keeping himself to himself in those situations.

The previous summer he had overheard three patients plotting to kill someone and had raised the alarm. Two of the patients had now been sent back to prison. After that he had been transferred to another ward because staff thought he would become unsettled. That upset him because he felt he had been unfairly penalised for telling staff about the plot. His four months in seclusion had followed the discovery in September 2011 that his girlfriend had died, following which he became very upset and angry and self-harming. At the time of the witness statement he said he was a bit more settled and due to be transferred to a high dependency ward at some point after 20 February 2012.

The Claimant said that he did not like being in Broadmoor and would like to know that there would be a way to challenge his need for high secure conditions when he felt ready to do that. He said that he knew it was very rare for someone to be released form Broadmoor straight into the community and he might not want to ask for that anyway as he might not feel safe being released straight into the community. However he said that he would like to have a chance to go back to lower secure conditions even if the doctors at Broadmoor did not agree. Otherwise he feared that he would end up at Broadmoor for too long.

At the time of his proposed transfer from a medium security to a high security hospital in August 2010 the Claimant was lawfully detained in a hospital. The legal basis for his detention derived from a so-called hospital order made pursuant to section 37 of the 1983 Act by the Crown Court at Chichester in June 2008 following his conviction for the index offence.

The conditions precedent to the making of what is described by section 37 (4) as a hospital order are that a person has been convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, that the court is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder and that it is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that appropriate medical treatment is available for him and that 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 a hospital order. (See section 37 (1) and (2)). Where a hospital order is made the court is prohibited from passing a sentence of imprisonment (section 37(8)). The effect of a hospital order is the authorisation by the court of the offender’s admission to and detention in such hospital as may be specified in the order (section 37 (1)).

The statutory power conferred by section 37 on a Crown Court to order the admission to and detention in a hospital of a person convicted of an offence punishable by imprisonment appears in Part III of the 1983 Act. Section 38 confers on the Crown Court an analogous power to make an interim hospital order if it is satisfied that the offender is suffering from mental disorder and that there is reason to suppose that it is such that it may be appropriate for a hospital order to be made. An interim hospital order may not exceed twelve weeks and may be renewed for further periods of up to 28 days at a time but cannot continue for more than twelve months.

Separate provision is made for the compulsory admission to and detention in a hospital of a person under Part II of the 1983 Act. Section 3 provides that a patient may be so admitted and detained in pursuance of an application made in accordance with Section 3. Such an application must be founded on the written recommendations of two registered medical practitioners including a statement that they are of the opinion that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital, that it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment and that it cannot be provided unless he is detained under section 3 and that appropriate medical treatment is available for him.

Section 20 of the 1983 Act provides that a patient admitted to hospital pursuant to section 3 may be detained for a period not exceeding six months but that authority for his detention may be renewed for a further period of six months and thereafter for a period of one year and so on for periods of one year at a time. Section 20 also provides a mechanism for a person’s liability to remain detained in hospital to be reviewed. Within the period of two months ending on the day on which a patient who is liable to be detained in pursuance of an application for admission for treatment would cease to be so liable in default of the renewal of the authority for his detention, it is the duty of the responsible clinician to examine the patient and, if it appears to him that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital and 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 and that it cannot be provided unless he continues to be detained, to furnish to the managers of the hospital where the patient is detained a report to that effect. The responsible clinician must consult one or more other persons who have been professionally concerned with the patient’s medical treatment before furnishing such a report. Such a report may not be furnished unless a person who has been professionally concerned with the patient’s medical treatment but who belongs to a profession other than that to which the responsible clinician belongs states in writing that he agrees that the patient is suffering from such mental disorder, that it is necessary that he should receive such treatment and that it can not be provided unless he continued to be detained.

Where such a report is furnished the authority for the detention of the patient is thereby renewed. Thus in effect the decision as to whether authority for a patient’s detention should be renewed is taken by the responsible clinician following consultation with one or more other persons who have been professionally concerned with the patient’s medical treatment by reference to his or her clinical judgment as to (a) whether the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital and (b) whether it is necessary for the health and safety of the patient and for the protection of other persons that he should receive such treatment and that it cannot be provided unless he continues to be detained.

Although the renewal of the authority to detain a patient follows automatically under section 20 on the furnishing of the report by the responsible clinician, it appears to be contemplated that upon receipt of such a report the hospital managers shall consider whether to exercise the power conferred on them by section 23 to discharge the patient. Section 20 (3) provides that where such a report is furnished the managers shall, unless they discharge the patient under section 23, cause him to be informed. Section 23, as modified by paragraph 1 of Part I of Schedule I of the Act provides that an order for discharge of the patient detained under a hospital order pursuant to section 37 may be made by the responsible clinician or the hospital managers.

Schedule 1 Part I paragraph 2 provides inter alia that section 20 applies subject to certain modifications to a patient subject to a hospital order. Section 40 for certain purposes and with certain modifications treats patients subject to a hospital order made under Part III of the Act such as the Claimant as if they had been admitted for treatment under Part II of the Act. The effect is that the time periods during which a person subject to a hospital order may continue to be lawfully detained are the same as in the case of a person admitted pursuant to section 3, save that the initial period of six months begins with the date on which the hospital order under section 37 was made.

There are two differences of potential relevance to issues in this case between the provisions for involuntary admissions pursuant to sections 3 and 37. First the power to detain a convicted offender is conferred on the sentencing judge. Although under both sections it is a necessary condition for admission that two registered medical practitioners are of the opinion that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital, under section 3 that is a sufficient condition whereas under section 37 it is not. Section 37 imposes the further requirement that the court must itself be satisfied that the offender is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment. The ultimate judgment is thus not that of doctors but of a judge who is free to reject the medical evidence placed before him. By contrast there is no requirement under section 3 for a specified person to accept the recommendations of the two registered medical practitioners or to be satisfied that the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital.

Second, section 37 requires the court to be of the opinion, having regard to all the circumstances including the nature of the offence and the character and the 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 a hospital order. Under section 3 the requirement is that two medical practioners must state that they are of the opinion that it is necessary for the health and safety of the patient or for the protection of other persons that he should receive medical treatment in hospital. The latter requirement specifically focuses on questions of the danger to third parties. However at the later stage of the renewal of the authority for the detention of a patient, as already mentioned, the criterion of continued treatment in hospital being necessary for the health or safety of the patient or for the protection of other persons applies to patients originally detained pursuant to hospital order under section 37 as well as to patients detained for treatment under section 3.

The 1983 Act makes explicit provision for the withholding of postal packets addressed to any person by a patient detained under the Act in a hospital at which high security psychiatric services are provided or addressed to any person by such a patient and delivered by such a patient for dispatch. The former may be withheld if the hospital managers consider that the postal packet is likely to cause distress to the person to whom it is distressed or to any other person or to cause danger to any person. The latter may be withheld if, in the opinion of the hospital managers, it is necessary to do so in the interests of the safety of the patient or for the protection of other persons. (Postal packets addressed to or sent by MPs, the patient’s lawyers and other similar categories of person are exempt). No similar provision is made in respect of postal packets delivered for dispatch by or addressed to patients detained in a hospital at which medium or low security psychiatric services are provided.

The Act makes no other explicit provision distinguishing between the conditions applicable to patients in hospitals at which respectively high and medium security psychiatric services are provided.

Provision for the transfer of patients detained under the 1983 Act from one hospital to another is made by sections 19 and 123 of the 1983 Act. Section 19 applies to transfers to and from all hospitals and thus applies to transfers, as in this case, from medium security psychiatric hospitals to high security psychiatric hospitals. Section 123 applies only to transfers between special hospitals, that is to say hospitals at which high security psychiatric services are provided, and to transfers from special hospitals to other hospitals. Thus it does not apply to transfers from medium security hospitals to high security hospitals. Section 123 provides that a patient detained in a high security hospital may be removed into another hospital or transferred to be detained in a hospital at which high security psychiatric services are not provided on the direction of the Secretary of State.

Section 19 (1)(a) provides that in such circumstances and subject to such conditions as may be prescribed by regulations made by the Secretary of State a patient who is for the time being liable to be detained in a hospital by virtue of an application under Part I of the Act may be transferred to another hospital or into the guardianship of the local social services authority or of any person approved by such an authority. Section 19 (1)(b) provides that subject to the same conditions a patient who is for the time being subject to the guardianship of the local social services authority or other person by virtue of an application under Part I of the Act may be transferred into the guardianship of another local social services authority or person or be transferred to a hospital.

Section 19 (2) provides that where a patient is transferred in pursuance of regulations under section 19 the provisions of Part I of the Act shall apply to him as if the application pursuant to which he was originally admitted for treatment had been an application for his admission to the hospital to which he is transferred and as if he had originally been admitted to the hospital to which he is transferred.

The combined effect of section 40(4) and paragraphs 2 and 5 of Part I of Schedule I of the 1983 Act is that section 19 of the Act applies to the transfer of patients admitted to and detained in hospitals pursuant to hospital orders and under section 37 of the Act with the modification that the provisions of Part I of the Act apply to such a patient as if the original hospital order by virtue of which he was liable to be detained had been an order for his admission to the hospital to which he is transferred.

Transfers of patients from one secure hospital to another pursuant to Section 19 of the 1983 Act (other than transfers between or from high security hospitals (which are governed by Section 123) or between hospitals under the same managers) are governed by Regulation 7 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. Regulation 7 (2) provides that in respect of such transfers a hospital patient may be transferred to another hospital where:

Thus the power to authorise the transfer of a patient who is for the time being liable to be detained in a hospital under the 1983 Act, whether pursuant to an application under section 3 or a hospital order made under section 37, is conferred on the managers of the hospital from which it is proposed that he should be transferred rather than the hospital to which it is proposed he should be transferred, in this case Stockton Hall Hospital. Although it is a further condition precedent for the lawful transfer of a patient that the managers of the hospital in which the patient is currently liable to be detained are satisfied that arrangements have been made for the admission of the patient to the hospital to which he is being transferred within a period of 28 days beginning with the date of authority for transfer, no express power is conferred on the managers of the hospital to which it is proposed that the patient should be transferred either to authorise or to refuse a transfer.

As appears from the evidence in this case the reality is somewhat different. Where a medium security hospital desires to transfer a patient detained in it to Broadmoor it has to refer the patient to Broadmoor and comply with Broadmoor’s procedures for considering such referrals. Those procedures are laid down in Broadmoor’s Admissions Panel Operational Policy which provide that, although a referring agency, including a medium security hospital, can appeal to the Broadmoor Admissions Appeals Panel against the final decision of Broadmoor’s Admissions Panel not to admit a referred patient, the decision of the Admissions Appeals Panel will be final and Broadmoor expects medium secure units to abide by the decision of the Appeals Panel.

The main decision for a referring medium secure hospital is whether it is appropriate to seek to refer the patient. The decision for the putative receiving high security hospital is whether it is prepared to admit the patient. It is the latter decision which is in practice determinative of the outcome, as demonstrated in this case by the fact that although Stockton Hall Hospital referred the Claimant to Broadmoor with a view to his transfer there on two occasions, it was only on the second occasion that the transfer was effective, Broadmoor having refused to accept him on the first occasion and only agreed to accept him on the second.

If the putative receiving hospital decides that it is prepared to admit the patient there is a second decision for the transferring hospital to make, namely whether it is satisfied that arrangements have been made for the admission of the patient to the hospital to which the patient is being transferred within a period of 28 days beginning with the date of the authority for transfer. However that second decision appears to relate to being satisfied as to the timing and logistics of transfer rather than as to the appropriateness of the decision to admit.

Neither section 19 of the 1983 Act nor Regulation 7 of the 2008 Regulations specifies any criteria by reference to which a decision whether to transfer a patient from one hospital to another should be made. Because section 19 and Regulation 7 cover transfers sideways, for example between one medium security hospital and another, as well as vertically between a medium secure hospital and a high security hospital, as in this case, plainly very different consequences may flow from a decision whether or not to transfer a patient, both for the patient and for other people in the putative transferring hospital.

Section 118 of the 1983 Act requires the Secretary of State to prepare and from time to revise a Code of Practice among other things for the guidance of managers of hospitals in relation to the admission of patients to hospitals under the Act. The Code of Practice is required to include a statement of the principles which the Secretary of State thinks should inform decisions under the Act and in preparing the statement of principles the Secretary of State is required in particular to ensure that each of the following among other matters is addressed: (a) respect for patients’ past and present wishes and feelings… (c) minimising restrictions on liberty…(h) patient wellbeing and safety, and (i) public safety. In performing functions under the Act hospital mangers among others are required to have regard to the Code of Practice.

The first two principles in the statement of guiding principles in the 2008 version of the Code of Practice provide that decisions under the Act must be taken with a view to minimising the undesirable effect of mental disorder by maximising the safety and wellbeing (mental and physical) of patients, promoting their recovery and protecting other people from them and that people taking action without a patient’s consent must attempt to keep to a minimum the restriction they impose on the patient’s liberty, having regard to the purpose for which the restrictions are imposed. The third principle requires people taking decisions under the Act to consider the patient’s views, wishes and feelings (whether expressed at the time or in advance) so far as they are reasonably ascertainable and to follow those wishes wherever practicable and consistent with the purpose of the decision.

The Code of Practice provides that treatment in conditions of enhanced security should last for the minimum period necessary (16.30).

There are striking differences between the provisions in the Code of Practice relating to the exercise by hospital managers of their statutory powers under section 23 to discharge patients and those relating to their powers and duties as regards transfer of patients between hospitals.

As regards discharge, the Code requires the organisation or individual in charge of the hospital either to consider discharge themselves or to arrange for their power to be exercised on their behalf by a “managers panel”. [31.3] In NHS bodies none of the people on managers’ panels may be employees or, in the case of NHS Trusts, officers, of the body concerned. [31.6] There is a requirement to ensure that people appointed to managers’ panels properly understand their role and the working of the Act, and that they receive suitable training to equip them to understand the law, work with patients and professionals, reach sound judgements and properly record their decision. This should include training in how risk is assessed and how to comprehend a risk assessment report. [31.8].

The Code provides that hospital managers may undertake a review of whether or not patients should be discharged at any time at their discretion, but that they must undertake a review if the patient’s responsible clinician submits to them a report under section 20 of the Act renewing detention and should consider holding a review when they receive a request from or on behalf of a patient. [31.11].

The Code points out that the Act does not define specific criteria that the hospital managers must use when considering discharge. However it states that the essential yardstick is whether the grounds for continued detention under the Act are satisfied. To ensure that that is done in a systematic and consistent way managers panels should consider, in the case of patients detained pursuant to section 37 the following questions in the order stated: Is the patient still suffering from mental disorder? If so, is the disorder of a nature or degree which makes treatment in the hospital appropriate? Is continued detention for medical treatment necessary for the patient’s health or safety or for the protection of other people? Is appropriate medical treatment available for the patient? [31.16]. If three or more members of the panel who between them make up a majority are satisfied from the evidence presented to them that the answer to any of the questions set out above is “no” the patient should be discharged. However in all cases hospital managers have discretion to discharge patients even if the criteria for continued detention are met. Managers’ panel must therefore always consider whether there are other reasons why the patient should be discharged despite the answers to the questions set out above. [31.22].

The Code points out that the Act does not define the procedure for reviewing a patient’s detention. However the exercise of this power is stated to be subject to the general law and to public law duties which arise from it. Hospital managers’ conduct of reviews must satisfy fundamental legal requirements of fairness, reasonableness and lawfulness. Managers panels should therefore adopt and apply a procedure which is fair and reasonable, not make irrational decisions – that is decisions which no managers panel properly directing itself as to the law and on the available information could have made and not act unlawfully – that is, contrary to the provisions of the 1983 Act and any other legislation including the Human Rights Act 1998. [31.23].

The Code prescribes detailed requirements for the conduct of reviews where detention is contested. Reviews should be conducted in such a way as to ensure that the case for continuing the patient’s detention is properly considered against the questions set out above and in the light of all the relevant evidence. That is said to mean that managers panels need to have before them sufficient information about the patient’s past history of care and treatment and details of any future plans. It is stated to be essential that panels are fully informed about any history of violence or self-harm and that a recent risk assessment is provided to the panels. [31.24].

In advance of the hearing, managers panels should be provided with written reports from the patient’s responsible clinician and from other key individuals directly involved in the patient’s care who they think are appropriate, such as the patient’s care-coordinator, named nurse, social worker, occupational therapist of clinical psychologist or clinical psychologists. [31.25].

The patient should be provided with copies of the report as soon as they are available as should his legal or other representatives, unless panels are of the opinion that disclosing the information would be likely to cause serious harm to the psychical health of the patient or any other individuals. [31.26]. Reports should be provided in good time so that patients and their representatives could consider them and, where relevant, draw the panels’ attention to any apparent inaccuracies. [31.27].

The Code of Practice provides that the procedure for the conduct of any hearing is for managers panels themselves to decide but generally it needs to balance informality against the rigour demanded by the importance of the task. Key points are said to be that the patient should be given a full opportunity and any necessary help to explain why they should be no longer detained; the patient should be allowed to be accompanied by a representative of their own choosing to help in putting their point of view to the panel; a patient should also be allowed to have a relative friend or advocate to attend to support them; and the responsible clinician and other professionals should be asked to give their view on whether the patient’s continued detention is justified and to explain the grounds on which those views are based. [31.32].

The patient and the other people giving views to the panel should, if the patient wishes, be able to hear each other’s statement to the panel and to put questions to each other, unless the panel believes that would be likely to cause serious harm to the physical and mental health of the patient or any other individuals. Unless, exceptionally, it is considered too unsafe, patients should always be offered the opportunity of speaking to the panel alone (with or without their representative and anyone else they have asked to attend to support them at the hearing). [31.34].

The Code of Practice states that members of managers panels will not normally be qualified to form clinical assessments of their own. It states that they must give full weight to the views of all the professionals concerned in the patient’s care. If there is a divergence of views amongst the professionals about whether the patient meets the clinical grounds for continued detention managers panels should consider the adjourning to seek further medical or other professional advice. [31.35].

In considering the questions set out earlier and deciding in the light of them whether or not to discharge the patient from detention, the Code of Practice states that managers panels need to consider very carefully the implications for the patient’s subsequent care. Before a managers panel considers a case, the responsible clinician, in consultation with the multi-disciplinary team, should have considered what services and other arrangements might be put in place for the patient if discharged and whether those arrangements will be sufficient to make continued detention no longer necessary. [31.36].

Finally the Code states that hospital managers have a common law duty to give reasons for their decisions. The decisions of managers panels, and the reasons for them, should be fully recorded at the end of each review. The decisions should be communicated as soon as practicable both orally and in writing to the patient’s nearest relative where relevant and to the professional concerned. [31.43]. If the patient is not to be discharged, at least one member of the panel should offer to see the patient to explain in person the reasons for the decision. [31.44].

The position in relation to transfers of patients between hospitals is markedly different. The Code of Practice states that decisions on transfers maybe delegated to a single officer who, so far from having to be someone who is not an employee of the body concerned, could but not need be the patient’s responsible clinician. [30.13]. It is implicit in the statement that the hospital managers do not have the power to insist that another hospital accept a patient [30.14] that the code of practice contemplates that the effective power to decide whether or not a referred patient should be transferred is conferred on the managers of the putative referring hospital and not on those of the putative receiving hospital.

Unlike in the case of discharge, the Code of Practice does not identify an essential yardstick which hospital managers must use when considering whether to authorise a transfer. Rather it states that people authorising transfers on the hospital managers’ behalf should ensure that there are good reasons for the transfer and that the needs and interests of the patient have been considered. It is stated that transfers are potentially an interference with the patient’s right to respect to privacy and family life under Article 8 of the ECHR and care should be taken to act compatibly with the Convention when deciding whether to authorise transfer. [30.15].

It is stated that valid reasons for transfer might be clinical – the need, for example, for the patient to be in a more suitable environment or in a specialist facility. They could also be to move the patient closer to home. In some cases, the transfer may be unavoidable, because the hospital is no longer able to offer the care that the patient needs. [30.16]. Among the factors that it is said need to be considered when deciding whether to transfer a patient are: whether the transfer would give the patient greater access to family or friends, or have the opposite effect; what effect the transfer is likely to have on the course of the patient’s disorder or their recovery; the availability of appropriate beds at the potential receiving hospital; and whether a transfer will be appropriate to enable the patient to be in a more culturally suitable or compatible environment, or whether it would have the opposite effect. [30.18].

It is notable that there is no specific reference to transfers from medium security psychiatric hospitals to maximum security psychiatric hospitals or to any particular issues arising from the stricter regimes in the latter.

So far as procedure is concerned the Code of Practice lays down no formal requirements for the decision making process. There is no prescription for a hearing, or for the provision to the patient and his legal or other representative of reports from the patient’s responsible clinician or other key individuals directly involved in his care. Nor is the exercise of the power to transfer said to be subject to the general law and to public law duties arising from it. The only prescription as regards the role of the patient in relation to a decision whether to authorise his or her transfer is the statement that wherever practicable, the patient should be involved in the process leading to any decision to transfer them to another hospital. It is said to be important to explain the reasons for the proposed transfer to the patient and where appropriate their nearest relative and other family or friends and to record them. Only in exceptional circumstances should a patient be transferred to another hospital without warning. [30.17]. It is also said that the professionals involved in their care should always be prepared to discuss the possibility of a transfer and should raise the issue themselves if they think that the patient might be interested in or benefit from a transfer. [30.20]. Although nearest relatives’ consent to transfers is not a statutory requirement it is stated that unless the patient objects his nearest relative should normally be consulted before the patient is transferred to another hospital. [30.22].

The Code of Practice is silent as regards the role of the putative receiving hospital. There is no reference to the decision by the receiving hospital as to whether to agree to admit a patient pursuant to a request or referral for transfer. Accordingly the Code prescribes no procedural requirements for the making of such a decision, the criteria by reference to which it should be taken or the matters which should be considered when taking it or the procedural rights or role of a patient in the decision making process.

The Defendant is an NHS Trust established pursuant to s 25 of the National Health Service Act 2007 which empowers the Secretary of State to “establish bodies, called National Health Service Trusts (“NHS Trusts”), to provide goods and services for the services for the purposes of the health service.” It was established pursuant to the West London Mental Health National Health Service Trust (Establishment) Order 2000 (SI 2000/2562). Paragraph 3 (2) (b) of the Order provides that one of the Defendant’s functions is to provide “high security psychiatric services” at Broadmoor Hospital. It is in the exercise of that function that Broadmoor, in conjunction with the two other high security hospitals, Ashworth and Rampton, developed the admission criteria set out in appendix 1 to the Admissions Panel Operational Policy and that it applies those criteria when considering requests from among others medium security hospitals to admit a patient. The Admission Guidelines appended to that Policy also state that they follow the principles set out in chapter one of the Code of Practice for the 1983 Act.

Broadmoor’s Admission Panel Operational Policy sets out the procedure for referrals of patients for admission to Broadmoor, the panel structure for considering such referrals and what are described as admission guidelines.

There are two Directorate Panels, one to consider mainstream referrals the other to consider Dangerous and Severe Personality Disorder referrals. The Directorate Panels comprise a lead clinician/consultant psychiatrist, the service director for information, the deputy director of nursing or nurse consultant or senior deputising colleague, a directorate lead psychologist or senior deputising colleague, the head of social work department or senior deputising colleague and the directorate lead occupational therapist or senior deputising colleague. If the lead clinician is not a consultant psychiatrist then he will represent their professional group and the panel will be chaired by the consultant psychiatrist. If any clinician has undertaken or supervised the assessment of the patient whose referral for admission is under consideration he or she cannot sit on the admission panel. Panel members should receive appropriate training before fully participating in panel work and be fully conversant with the operational procedure and admission guidelines.

The referral procedure provides for written applications to be made to the lead clinician at Broadmoor. The application should include past psychiatric history social history with indications of what has been independently corroborated, details of events (index offence or behaviour as an in-patient) which triggered the referral, a past medical history, forensic history, history of substance abuse, copies of significant past reports and a summary of the current treatment plan.

This is followed by a visit to the referring hospital by the Broadmoor assessing doctor. The referring unit is required to make every effort to ensure that staff who know the patient well are available to speak to the assessing doctor during his visit and in all cases the assessing doctor is required to liaise with the referring Consultant.

The Broadmoor assessing doctor or team then prepares a report in accordance with the specified standards. The assessment should be undertaken by consultants or specialist registrars with the qualifications of MRC Pysch. Wherever possible the report should be based on a face to face interview with the referred potential patient. The report is required to be prepared in accordance with the guiding principles contained in the Code of Practice. It should also include a detailed account of the patient’s background including their psychiatric history, history of substance misuse and forensic history. It should include a mental state examination. The opinion and recommendations in the report should include psychiatric diagnosis, a risk assessment and a risk management proposal, and a clearly argued case for maximum security if that is recommended. A Broadmoor social worker also provides a report to the Panel based on reading files and contact with the local probation and social services.

The Admissions Panel requires a quorum of three panel members to include medical representation. One panel member is asked in advance by the Admissions Panel secretary to present the case to other panel members. The assessing doctor is permitted to attend the panel and allowed to contribute to the presentation of the case but is not a panel member. The panel has the power to accept or reject a case, to request further written information, to request the recommending Broadmoor doctor to attend the panel, to provide additional information and to seek a further assessment from another clinical discipline within Broadmoor. The panel will be guided by the admission guidelines. If a consensus view cannot be reached a majority view will be accepted if necessary the chair having a casting vote.

Paragraph 6.10 of the Policy provides:

“Requests by persons to attend the panel as observers should be made to the admissions panel secretary APS. Persons observing the panel will not be expected to contribute to the discussion but may raise questions once a decision has been reached”.

As mentioned above when Ms Jolly requested to attend the panel meeting considering the Claimant’s proposed transfer pursuant to paragraph 6.10, she was told that paragraph 6.10 was primarily intended for trainees to observe the internal process and that it had never been Broadmoor’s practice to allow attendance by referring agents, either doctors or others, at the decision making meeting in respect of their particular case.

Appendix 1 to the Admissions Panel’s operational policy is the Admission Guidelines. It states that when an application is made for a bed at Broadmoor Hospital there are three main issues which need to be considered: the presence or absence of a recognisable mental disorder, liability to detention under the 1983 Act as amended and risk to others. The reference to the first two issues no doubt reflects the fact that both the guidelines and the admissions policy itself apply not only to requests to admit patients by way of transfer from other hospitals where they are compulsorily detained, but also to requests pursuant to applications to detain persons under the 1983 Act.

Paragraph 4.1 of the guidelines provides:

“The regimes of care and observation at Broadmoor Hospital can only be justified when the highest level of security is required and no lesser degree of security will provide a reasonable safeguard of the public. It is an unacceptable infringement of patients’ rights to detain them in a higher level security than they require. Standard 5 of the National Service Framework for Mental Health states that an appropriate hospital bed is one that is in the least restrictive environment consistent with the need to protect the service user and the public and is as close to home as possible. The high security available within Broadnmoor Hospital is necessary to detain patients who could not be safely contained within the security available at a medium secure unit.”

Paragraph 4.2 provides that in considering what constitutes criteria for detention in conditions of high security one of more of the following behaviours, in addition to a mental disorder must be present before admission to Broadmoor can be contemplated:

“

(a)

Evidence of serious planned or unprovoked assaults on others including other patients or staff in secure establishments as well as members of the public.

A propensity to kick or punch others is not itself sufficient to qualify a person as requiring high security. A person who persists in causing minor injuries and a nuisance would not qualify; despite the considerable difficulties and strain placed on others. However the frequency and severity of assaults will be taken into consideration. Patients who require prolonged or frequent use of seclusion or enhanced levels of nursing care in less secure environments may be considered appropriate for admission to conditions of high security. Where there is evidence that violent or dangerous behaviour cannot be contained in medium security then care in high security is likely to be required. On the other hand perpetrating a serious assault on another person in the community may not necessarily mean that a person requires high security, if the risk to others can be safely contained in conditions of lesser security.

(b)

Evidence of the planned use of weapons such as knives, firearms or explosive devices or attempts to make home made weapons or conceal weapons in other secure establishments may warrant consideration of high security. However the opportunistic use of objects as weapons would generally be considered less serious and such behaviour may be safely contained in conditions of lesser security.

(c)

Evidence of aggressive feelings, intimidation or threats towards a particular person either in the community or in another secure environment and which is considered likely to result in violence against them. Threats in themselves would not be considered a sufficient reason for high security whereas evidence of attempts to act on aggressive feelings of threats may make admission to Broadmoor Hospital necessary.

(d)

Evidence of serious sadistic behaviour or serious sexual assaults on others including other patients or staff or members of the public may be a reason for detention in conditions of high security. However in order to require high security it would be necessary to demonstrate that any sexually assaultative (sic) behaviour could not be contained in a unit of lesser security with single sex accommodation.

(e)

Evidence of fire setting, particularly where other persons are put at risk and where the risk cannot be contained by security measures that it would be reasonable to expect of a medium secure unit.

(f)

Evidence of the use of poisons or drugs to cause harm to others.

(g)

Evidence of attempts or actual hostage taking.

(h)

Evidence of persistent, scheming or determined absconding or escape from other secure establishments. In the case of a person who presents a risk of serious harm to others, it may be possible to prevent escape by detaining that person in a local hospital or medium secure unit. If there is evidence that they have attempted to or have successfully escaped from within such a unit then admission to Broadmoor Hospital may be necessary. In exceptional circumstances the person may seek to engage outside help in order to escape or alternatively may be at risk from others outside the unit who may seek to harm them and in these circumstances admission to conditions of high security would be considered. Simply absconding whilst on unescorted or escorted leave from a less secure establishment would not normally be an indication for high security. Any person who has a known propensity for persistent, scheming or determined absconding or escape and who could not be safely contained in a lesser security may require admission to Broadmoor Hospital.

(i)

Use of alcohol or illicit substances would not normally mean that a person would require admission to conditions of high security except if the use of such substances was associated with a substantially increased risk of harm to others and could not be prevented by other means.

This list is not meant to be exhaustive, nor should it be used simply as a checklist. Each case is considered on its own merits, taking full account of the circumstances and patterns of behaviour.”

Paragraph 4.3 provides:

“Admission to conditions of high security at Broadmoor Hospital is not generally suitable for patients who:

i)

though exhibiting extreme disruptive or anti-social behaviour in the community or local hospital are unlikely to inflict serious physical injury on others.

require close observation to prevent self-injury or suicide, unless this is associated with a significant risk to others.”

The Policy lays down a time scale of four weeks from receipt of a referral to the communication of the decision, broken down into four periods of one week each for acknowledging and allocating a referral to a consultant, undertaking the assessment and writing the report, submitting the report to the admissions panel and communicating the decision to the referrer. If further information is required from the referrer or another source the time scale does not start until that information is available. It is stated that patients should not have to wait longer than three months from the date of acceptance.

The Policy provides for an appeals procedure. There is an Admissions Appeal Panel whose membership comprises a non executive director of the West London Mental Health Trust as chair, the clinical director of Broadmoor, an independent MSU consultant on a rotational basis and a representative of the NHS London Strategic Health Authority. Each panel member has a nominated deputy. The circumstances in which cases can be referred to the Appeals Panel are when either the referring agency or the Broadmoor assessing consultant is not satisfied with the final decision of the Directorate Panel, or, on an exceptional basis, other areas of dispute when the chairpersons of both Panels agree that the Appeals Panel should make a decision on the case in question. All four members of the Appeals Panel must attend. The Appeals Panel will have the same reports as the Directorate Panel. In addition it will have the written decision of the Directorate Panel. If appropriate other persons may be invited to the panel to provide information. The Appeals Panel will reach a decision within six weeks of being referred a case. Unless new information is subsequently provided the decision of the Appeals Panel is said to be final and, as already mentioned, Broadmoor expects medium secure units to abide by the decision of the Appeals Panel.

In a witness statement Dr Kevin Murray, the clinical director for Broadmoor who is a consultant forensic psychiatrist employed by the Defendant, described Broadmoor’s risk criterion set out in its Admission Policy as being that the risks attaching to the person’s presentation or conduct are such that treatment cannot be safely taken forward in any conditions of lesser security. He said that Broadmoor receives approximately one hundred referrals annually of which about fifty are accepted on first application. Those referred include people remanded in custody having been charged with committing a serious offence in the community or who are serving a prison sentence as well as those who are presenting problems in less secure services and who are referred for continuing care at Broadmoor. Where, after assessment, it is “our” view that the person does not need admission to higher security but the medium security unit consider that they cannot safely admit (from prison) or continue to look after the particular patient (if a current in-patient) Broadmoor review the case at its “independent Appeals Panel”. About forty six such cases are reviewed every year about half of whom are accepted for admission despite their having previously been rejected.

Dr Murray said that it is the explicit intention of the Department of Health that the three high secure services (that is to say Broadmoor, Rampton and Ashworth), should work to the same admission standards across the country, providing in effect one service on three sites. As part of the governance of that process the three hospitals cooperated over the past eight months in a project whereby twenty five percent of their Admissions Panel were undertaken with video conference input from the other hospitals, who provided their independent view of whether the referral should have been accepted or not.

Dr Murray stated that Admissions Panel decisions are taken on the basis of clinical material supplied by the referring agency, typically either a prison, a solicitor representing a person on remand, or a medium secure unit. All cases are assessed by a suitable qualified doctor from Broadmoor Hospital and on occasions by other members of staff such as a nurse or a psychologist. The assessing clinicians prepare a report for the Admissions Panel, which comprises the Clinical Lead (Lead Doctor) for either Personality Disorder or the Mental Illness Directorate, who chairs the panel, a Senior Nurse, a Senior Psychologist, a Senior Occupational Therapist, and a Senior Social worker. As to the Admissions Panel, Dr Murray stated that the Broadmoor assessing doctor does not attend. Nor is there attendance from the patient’s solicitor or family. He stated that these are clinical decisions taken by an experienced group of clinical staff who have long experience in assessing referrals. The intention has been to ensure that there is a consistent threshold for admission decisions, irrespective of the individual views of the referring service or assessing clinician. Similarly, the Appeals Panel reviews the papers available to the original Admissions Panel and any additional documentation provided by the dissatisfied referring agency who are seeking to appeal the original Admission Panel’s decision.

Thus neither at the Admissions Panel stage nor at the Appeals Panel stage does the procedure described by Dr Murray make any provision, in the case of a proposed transfer of a patient from a medium secure hospital, for any involvement on the part of the patient or his solicitors, whether by making representations, receiving the material put before the panels, attending hearings or otherwise. This was reflected in the position of the Interested Party. In her skeleton argument Ms Hayes who appeared for the Interested Party submitted that a patient has no right to be consulted prior to transfer between hospitals. It was also reflected in Dr Murray’s response in the letter dated 1 September 2010 from the Defendant in response to Ms Jolly’s request for permission to attend the Admissions Panel which would consider the Claimant’s application as an observer in accordance with paragraph 6.10 of the Admissions Panel Operational Policy. He said that that paragraph was primarily intended for trainees and that it had never been Broadmoor’s practice to allow attendance by referring agents, either doctors or others, at the decision making meeting in respect of a particular case. A fortiori it is to be inferred it was not the practice to permit attendance on the part of the patient who was being referred or his solicitors.

A patient who is transferred from a medium secure hospital to a high secure hospital against his will has no right of appeal either against a decision of the transferring hospital to authorise his transfer or against the decision of the receiving hospital to agree to his admission thereto. Nor is there a right of appeal against a patient’s compulsory admission to hospital on the recommendation of two general medical practitioners pursuant to section 3 of the 1983 Act. An appeal against a hospital order made under section 37 of the 1983 Act lies by way of the submission of a case stated to the Divisional Court of the Queens Bench Division of the High Court.

The position is different in Scotland. Section 126 of the Mental Health (Care and Treatment) (Scotland) Act 2003 confers a right of appeal to the Mental Health Tribunal for Scotland on a patient who receives notice that it is proposed to transfer him or her or who is transferred to a state hospital (at which special security psychiatric services are supplied) against the proposed transfer or as the case may be the transfer. On an appeal the Tribunal may order that the proposed transfer not take place or as the case may be that the patient be returned to the hospital from which he or she was transferred if it is not satisfied that the patient requires to be detained in hospital under conditions of special security and that those conditions of special security can be provided only in a state hospital. If, when an appeal against a proposed transfer is made to the Tribunal, the proposed transfer has not taken place, Section 126(4) provides that the managers of the hospital shall not transfer the patient as proposed but that the Tribunal may, if satisfied that, pending determination of the appeal, the patient should be transferred as proposed, make an order that the patient be so transferred.

The power to transfer a detained patient from one hospital to another, whether a special hospital or otherwise, is conferred on the managers of the hospital in which a patient is detained by section 124 of the 2003 Act. The only condition which must be satisfied is that the managers of the hospital to which it is proposed to transfer the patient consent to the transfer. Section 125 confers a right to appeal to the Tribunal against a transfer or proposed transfer to any hospital other than a state hospital. On such an appeal the Tribunal has power to order that the proposed transfer not take place or as the case may be that the patient be returned to the hospital from which he was transferred. As distinct from an appeal under section 126 there is no condition precedent to the making of such an order that the Tribunal must not be satisfied that the patient requires to be treated in the proposed receiving hospital or that a particular treatment can only be provided there. There appears to be a general discretion as to whether to make an order.

Although there is no right of appeal against a decision to transfer a patient pursuant to section 19 of the 1983 Act, there is a right , albeit only exercisable periodically, to make an application to the Mental Health Review Tribunal. The right to make an application to the Tribunal is conferred on detained patients by section 66 (1) of the 1983 Act. Curiously section 66 is silent as to the relief which a patient is entitled to apply for. However the powers and duties of the Tribunal are set out in section 72. They are principally concerned with the discharge of the patient.

Section 72(1) confers on the Tribunal a power where application is made to it by or in respect of a patient who is liable to be detained under the Act to direct that the patient be discharged. It also imposes on the Tribunal a duty, on the application of a patient liable to be detained otherwise than under section 2 of the Act, to direct the discharge of the patient if it is not satisfied that he is not then suffering from mental disorder or from mental disorder of a nature or a degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment or 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 or that appropriate medical treatment is available to him.

Section 72(3) provides:

“A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may –

With a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and

Thus where, as here, a patient is transferred from a medium security hospital to a high security hospital against his will, the Tribunal has the power not to direct that he be transferred back to a medium security hospital but rather to recommend that he be so transferred. There is no statutory obligation on the managers of the hospital to which the patient has been transferred to act on such a recommendation and even where the hospital mangers are minded to do so they have no power to insist on such a transfer which, to be effected, depends on the availability of a bed in a medium security hospital and the consent of the managers of such a hospital as well as the body responsible for funding it. It should also be noted that the Tribunal’s power to recommend a transfer may only be exercised with a view to facilitating the patient’s discharge. Although that may coincide with a conclusion that the patient’s continued detention in a high security hospital is not necessary for the protection of himself or others it may not necessarily be so.

A further limitation on the effectiveness of the route of applying to the Tribunal to make a recommendation to transfer the patient back to a medium security hospital is that the right to make such an application may only be exercised in the case of a patient, such as the Claimant, who is detained pursuant to section 37 between six and twelfth months from the date on which the hospital order was originally made and thereafter during each subsequent renewal period of twelfth months. (Section 66 (1)(f), (2)(f), 40(4) and Schedule 1, Part 1, para 269). Moreover only one such application can be made within each renewal period. That is to say so far as the Claimant is concerned, only once every twelfth months.

Unlike a patient detained pursuant to section 3 of the Act, a patient such as the Claimant who is subject to a hospital order cannot apply to the Tribunal when he is first admitted to hospital for treatment. (Schedule 1, Part 1, paragraphs 2 and 9, which disapply section 66(2)(b) in the case of a patient detained pursuant to a hospital order).

A patient such as the Claimant can, however, apply to the Tribunal pursuant to MHA 1983 s 66(1)(f) where a report has been furnished pursuant to MHA 1983 s 20. The patient is therefore able to challenge the conclusion of the registered clinician that the conditions in s 20(4) are satisfied (i.e. that the patient continues to suffer from a mental disorder which makes it appropriate for him to receive medical treatment, that it is necessary for the health and safety of the patient or the protection of other persons that he should receive such treatment and that it cannot be provided unless he continues to be detained).

A renewal of detention, and therefore a report under MHA 1983 section 20, is required 6 months after the initial hospital order is made if the patient is to remain detained (s 20(1)). A further report is then required 6 months later (s 20(2)(a)) and then at 1 yearly intervals (s 20(2)(b)). A patient subject to a hospital order who has been detained for more than 1 year is thus able to apply to the Tribunal pursuant to s 66(1)(f) following each yearly report written for the purposes of the renewal of the authority to detain him. He may, however, only make one application to the Tribunal during that yearly period (s 77(2)).

A transfer of a patient from one hospital to another is not one of the circumstances in s 66(1) which triggers a right to make an application to the Tribunal. If the Tribunal is otherwise seized of a case, however, it may make recommendations on transfer if it is doing so with a view to facilitating discharge at a future date (s 72(3)).

Thus if a patient such as the Claimant who has been detained pursuant to a hospital order and who has been transferred against his will from a medium security hospital to a high security hospital does not seek a direction for his discharge from detention under the 1983 Act but only a transfer back to a medium secure hospital, there is in theory nothing to stop him from applying to the Tribunal for a recommendation that he be transferred but it has the following limitations.

First he cannot apply until at least six months after his initial detention, thereafter not for a further six months and thereafter not for a further 12 months. Thus depending on the timing of the transfer he may have to wait for up to six or 12 months before making an application. Second he may only make one such application within each period.

Third the issue before the Tribunal is not whether he was wrongly transferred in the first place either because for whatever reason he did not satisfy the criteria of the receiving hospital Admissions Panel or because the Panel erred in some way or because the referring medium security hospital erred in its decision to authorise the transfer. Rather it is whether as a matter of discretion he should be transferred back to a medium security hospital (not necessarily the one from which he was transferred in the first place) with a view to facilitating his discharge on a future date.If the patient was in fact wrongly transferred, for example because the decision was materially influenced by a mistake of fact, it does not follow that at a later date the discretion whether to recommend their transfer back to a medium security hospital with a view to facilitating their discharge at a future date could only be exercised one way.

Fourth the Tribunal has no power to direct a transfer back to a medium security hospital. Thus even if the Tribunal concluded that the patient had been wrongly transferred in the first place, the patient would have no absolute right to be transferred back to a medium security hospital. Fifth even if the managers of the high security hospital to which the patient was transferred agree with the Tribunal’s recommendation, there are a series of practical hurdles which need to be overcome before the recommendation can be implemented, any one or more of which is liable to cause delay. Details of these hurdles were referred to in the witness statement of Ms Campbell to which I refer below. Until those hurdles are overcome a patient who was wrongly transferred must remain subject to the high security regime with its greater actual and potential restrictions and its potential for delaying the patient’s ultimate discharge from detention under the 1983 Act.

In his Claim Form the Claimant sought an interim order prohibiting the Defendant from admitting him to Broadmoor, an order quashing the Defendant’s decision to admit him to Broadmoor, a declaration that the Defendant’s decision to admit him to Broadmoor was in breach of Article 8 and/or Article 6 of the European Convention on Human Rights and/or was procedurally unfair, damages, costs and further or other relief. In his application for urgent consideration he contended that the decision to admit him to Broadmoor was disproportionate and a breach of Article 8, that the failure to entitle him to make representations on his admission to Broadmoor was unlawful and rendered the decision procedurally unfair and that the Defendant should quash the decision of 15 September 2010 and make a fresh decision taking into account representations by him.

In his grounds in support of the claim the Claimant submitted that the decision to transfer him to Broadmoor was a breach of Article 8. It interfered with his right to private life because the high security regime at Broadmoor meant that there would inevitably be additional security measures such as searches which were likely to engage Article 8 and which were likely to mean that it would be difficult for him to maintain contact with his family which would also be likely to engage Article 8. The interference would be a breach of Article 8 because it was either unnecessary or failed to strike a fair balance. The matter that appeared to have prompted the decision to admit him to Broadmoor was the production of a weapon. This was demonstrated by the fact that the index offence and the escape where the Claimant attempted to locate his victim had been insufficient to justify his admission on the earlier occasion and by the fact that the application followed shortly after the production of a weapon. Reliance was placed on the fact that the weapons were discovered because the Claimant voluntarily brought them to the staff’s attention and that there was no reference to that fact before the Admissions Panel. It was submitted that no account had been taken of the Claimant’s acknowledged unreliability in self-reporting and evidence that he may have a tendency to “fake bad”. It was further submitted that there were a number of measures available in medium security conditions which could safely manage his risks.

Further or alternatively the Claimant submitted that the standards of common law procedural fairness were engaged by the decision to admit him to Broadmoor because the additional security restrictions placed on him meant that that regime would be significantly more restrictive and because his transfer to conditions of high security was likely to delay his release because no doctor would be likely to be willing to authorise his release until he had demonstrated that his risks could be managed in conditions of reduced security.

It was alleged that there had been a failure to comply with standards of procedural fairness. The Claimant had been given no real opportunity to challenge the decision to transfer him. There had been a failure to disclose the material said to justify the transfer decision at a time when representations could have been made. In particular the Broadmoor assessment report had not been disclosed in advance of the decision. Further this is a case where an oral hearing was required because there was a plain dispute about the extent to which the production of a weapon was indicative of risks.

Further or alternatively the Claimant submitted that Article 6 was engaged by the decision to admit him to Broadmoor. There was a dispute as to whether he should be admitted. The decision was likely to be an infringement of his rights protected by the European Prison Rules as high security was likely to severely restrict his remaining freedoms. It was also the sort of matter that can give rise to judicial review proceedings. The dispute related to matters that had implications for the maintenance of relationships which was sufficient to engage Article 6. Further the Admissions Panel was compelled by the Human Rights Act 1998 to determine whether Article 8 had been violated. That also engaged Article 6.

There had been a plain failure to comply with Article 6. First there had been a failure to disclose relevant material relied on as part of the decision making process at a time when representations could have been made. More importantly there was a failure to ensure equality of arms in the failure to involve Claimant in the decision making process. Further the decision was taken by a body that lacked independence, a matter that could not be remedied by a claim for judicial review. The primary issue was a simple issue of fact of a sort regularly considered by the criminal courts when sentencing, namely whether the Claimant’s recent behaviour demonstrated high risk. Further the decision was taken following a procedure that lacked sufficient safeguards to ensure compliance with Article 6 and any claim for judicial review was likely to be considered months after the decision took effect.

By the time Mr Southey QC served a skeleton argument on behalf of the Claimant on 19 March 2012 it was made clear that the Claimant no longer sought to argue that his transfer was a breach of the substantive provisions of Article 8 in the sense that it was disproportionate.

This was said to be because it was accepted that the issue was now academic and that it was now unnecessary to determine it. This no doubt reflected the statement in Mr Southey’s updated skeleton argument dated 14 December 2010 that the Claimant no longer challenged his placement in conditions of high security at Broadmoor.

The Claimant originally argued that Article 6 was engaged because Article 8 was engaged. However in a note dated 1 April 2012 Mr Southey QC accepted that the recent decision of the Court of Appeal in R (King) v Secretary of State [2012] [EWCA] Civ 376 meant that that argument was no longer open to him in this Court, although the Claimant reserved the right to rely on the argument during the course of any appeal.

However Mr Southey QC submitted that Article 8 potentially gave rise to free standing procedural obligations and that his concession did not mean that Article 6 is not engaged in this case.

At the hearing before me there was discussion as to whether it was inappropriate for me to entertain the claim for judicial review in the light of the the Claimant’s indication that he no longer wished to challenge his transfer to Broadmoor and was not seeking an order either that he should be returned to Stockton Hall or that the referral to Broadmoor should be reconsidered with the benefit of an oral hearing and full representations informed by sight of all the relevant documents that were before the Panel.

As already mentioned the day after Mr Ockleton granted him a temporary injunction preventing his transfer to Broadmoor the Claimant withdrew his application for interim relief and on 7 October 2010 consented to the lifting of the injunction with the effect that he was transferred to Broadmoor on 6 October 2010. On 2 November 2010 he also withdrew an application he had made on 6 October 2010 to the Mental Health Tribunal which would have had the power either to order his discharge from detention or, more realistically, to recommend his transfer back to a medium security hospital.

In Mr Southey’s updated skeleton argument for the permission hearing he stated that the Claimant no longer challenged his placement in conditions of high security. However he submitted that that did not mean that the claim is academic. He submitted that it raises issues of general application regarding the legality of the procedure adopted when determining whether a patient should be detained in conditions of high security. That issue he said is of importance to the Claimant as there will come a time when he seeks to challenge his continued detention in high security. For that reason a finding that he is entitled to higher standards of procedural fairness is important.

In addition Mr Southey submitted that the claim should continue to be considered because it raises an important issue of principle. Patients will often be transferred to conditions of high security and the extent to which procedural safeguards apply will have implications for all of them. He relied in that context on the decision of the Court of Appeal in R (C) v Mental Health Review Tribunal [2002] 1 WLR 176. In that case the claimant, who was compulsorily detained under s 3 of the 1983 Act, challenged a practice in the Mental Health Review Tribunal routinely to list for hearing applications for discharge eight weeks after the date of the application as contravening Article 5 (4) of the European convention on Human Rights.

Before the claimant’s application for judicial review was heard, he had been discharged. Scott Baker J decided nonetheless to hear the application for two reasons: (i) the application raised a point of general public importance and (ii) the point might prove of more than academic interest to the claimant who suffered from schizophrenia. There was at least a risk that he might find himself again detained under the 1983 Act in the future. Brooke LJ gave permission to appeal because he considered that it was appropriate that the Court of Appeal consider the Convention point. In his judgment on the substantive appeal Lord Phillips of Worth Matravers, with whom the other two members of the Court agreed, said that he agreed with Brooke LJ.

In his amended Grounds of Opposition Mr Hyam for the Defendant submitted that the claim is now entirely academic and that permission should be refused. In the light of the fact that the Claimant no longer challenged his detention at Broadmoor, did not seek to contend that his transfer was in violation of Article 8 and that he accepted in Mr Southey’s updated skeleton argument that there is no medical evidence to support his submission that there was a breach of Article 8, the only purpose of the claim was an arid debate on issues of purely theoretical significance as to the procedural protection which the Claimant says ought generally to apply to transfers between mental hospitals. Of the remedies sought in the Claim Form the only ones remaining live were the declaration that the defendant’s decision to admit him to Broadmoor is in breach of Article 8 and/or Article 6 and/ or is procedurally unfair at common law and damages. In the light of the concessions made by the Claimant the declaration must be confined to Article 6 and common law unfairness and the damages to damages for breach of Article 6.

In a note in response dated 29 January 2011 Mr Southey submitted in addition that a ruling on the merits as he put it is required if the Claimant is not to remain a victim of a violation of Article 6 for the purposes of the European Court and so be able to apply to that Court (Scordino v Italy [2006] 45 EHRR 207 at [180]. That was important because the purpose of the Human Rights Act 1988 was to remove the need for people to apply to the European Court.

On 24 May 2011 Kenneth Parker J, in giving permission to apply for judicial review observed that although the Claimant does not challenge his present confinement in Broadmoor it seemed to him that he raises arguable grounds concerning the legal fairness of the procedures for transfer that are of general importance and that merit review.

At the hearing before me issue was again joined between the parties as to whether, notwithstanding that permission to seek judicial review had been granted, the Court should not entertain the claim. In addition to the matters relied on before permission was granted the Defendant relied on the confirmation in the Claimant’s second witness statement dated 9 February 2012, nearly nine months after permission was granted, that he was not currently seeking to challenge his detention in high security conditions.

Mr Hyam put his case in two ways. At its highest the inference to be drawn from the Claimant’s consent to the lifting of the injunction and his transfer to Broadmoor, his abandonment of his application to the Mental Health Tribunal and his continuing confirmation that he did not seek to challenge his placement and continuing detention in Broadmoor, coupled with his abandonment of his submission that the transfer to Broadmoor was a breach of his Article 8 rights, was that he recognised that the substantive challenge to the decision to transfer him on Article 8 grounds was hopeless. Thus even if the court were to decide that the decision to transfer him involved a breach of any common law duty of fairness, it would make no practical difference to the outcome since even if there had been no such breach the decision would have been the same.

Alternatively even if the Court could not rule out the possibility that a different outcome might have resulted from the application of a fair procedure, a declaration to the effect that there had been a breach of a common law duty of fairness would still have no practical effect since the Claimant is not challenging his transfer or continued detention and is not inviting the Court to order his transfer back to a medium security hospital.

In addition to the written arguments advanced by Mr Southey QC before permission was granted, Mr Squires on behalf of the Claimant drew attention to a number of matters in the Claimant’s second witness statement and the second and third witness statements of Ms Jolly dated 19 and 20 April 2012 respectively. In the former the Claimant complained that he found life at Broadmoor very restrictive compared to being in a medium security hospital and gave details of the restrictions which he found intrusive. He said that he did not like being in Broadmoor and would like to know that there would be a way to challenge his need for high security conditions when he felt ready to do that. He would like to have a chance to go back to lower security conditions even if the doctors at Broadmoor did not agree. Otherwise he was afraid that he would end up there for too long.

In her second witness statement Ms Jolly suggested that the reason the Claimant withdrew his challenge to the transfer was that he was unhappy being in Stockton Hall, particularly after issuing proceedings for judicial review. He stated that he did not want to go to Broadmoor but wanted to do anything to get out of Stockton Hall and felt that Broadmoor was his only option. It was for that reason that the application for interim relief was withdrawn and his transfer went ahead. The Claimant however remained of the view that he should not have been transferred and that he did not want to stay in Broadmoor.

After a few months he had become more settled in Broadmoor and did not want to jeopardise that with another move at that stage. However he continued to feel that he did not need high security conditions and that the decision to transfer him and the way it had been taken were wrong. He foresaw a time when he would feel ready to challenge his continued detention in Broadmoor. He was also aware that if he was transferred back to medium security there was a risk of similar incidents occurring and the possibility of him being referred back to high security. He was concerned to make sure that if that happened he would have a fair chance to prevent his return.

In her third witness statement Ms Jolly clarified that by similar incidents she meant an incident, allegation or assessment giving rise to a factual dispute over whether or not the Claimant’s risk warrants high security. If in the future he were to be considered for transfer to high security and were to feel that that was wrong or wished to see the documents in order to consider whether it was wrong he was concerned to make sure that he would have a fair chance to prevent his return to Broadmoor.

Ms Jolly made a further point. Having described the Claimant as a complex and conflicted individual who struggles with feelings of hopelessness and low self-worth who often expresses himself in a superficial way which makes it difficult to know what he really feels, she said that, based on her experience at the Howard League for Penal Reform and currently at Deighton Pierce Glynn Solicitors, she was aware that there would always be significant difficulties in challenging the transfer process on behalf of detained patients because of their unique vulnerabilities. Even where they fall short of lacking capacity, they are often confused, conflicted, inconsistent in their instructions and influenced by feelings of hopelessness, worthlessness, discomfort or desperation for security. They often find it difficult to canvass and assert their rights, even with the help of a solicitor. She stated that the numbers involved are already small and in many cases the transfer process will not be substantively challenged and/or the client will not feel able or willing to challenge it. The opportunity to challenge the fairness of the procedure at the same time as a challenge to the substantive decision is likely to be infrequent. However it is precisely the vulnerability of this group and the impact of high security upon them that makes the fairness of the transfer procedure a matter of general importance.

I see the force of Ms Jolly’s points, with which I am not unsympathetic. Nor am I persuaded by Mr Hyam’s argument.

Without at this stage going into the detail of the merits of the abandoned substantive challenge to the decision to transfer him, it is in my judgment clear that, even on the assumption that the Broadmoor Assessment Panel proceeded on an incomplete and possibly inaccurate understanding of the facts of the incident which triggered the referral, the evidence before me suggests that it is likely that it would have reached the same decision if it had had a complete and accurate understanding of the facts.

The essential question which the Panel had to and, according to the note of its decision, did consider was whether the high security available at Broadmoor was necessary because no lesser degree of security would provide a reasonable safeguard to the public and whether the Claimant could not be safely contained within the security available at a medium security unit (see para 4.1 of the Broadmoor Admission Guideline).

The reasons for admission to high security recorded by Dr Das the chairman of the Panel in his file note dated 15 September 2010, included the conclusion that the Claimant posed a serious risk of harm to others and concern that continued care in conditions of medium security would put fellow patients and staff at grave risk of harm. Although the immediate reason for referral was said to be manufacturing a dangerous weapon with intent to cause harm to others, the Claimant’s serious index offence of hostage taking and his history of escape from custody were also cited as reasons.

Dr Vandenabeele in his referral letter considered that the Claimant posed a grave risk and Dr Sengupta in his assessment report assessed the Claimant as at high risk of future violence. Neither those assessments nor the conclusions of the Admissions Panel have ever been challenged by medical evidence adduced on behalf of the Claimant, whether on the basis of the facts as set out in Dr Vandenabeele’s and Dr Sengupta’s reports or on the basis of the facts as contended for by Ms Jolly.

It is true that Dr Vandenabeele’s assessment was based in part on his statement that the Claimant was inciting other patients and that he had manufactured the weapons in order to assault another patient and that Dr Sengupta based his risk assessment in part on the fact as he referred to it that the Claimant had manufactured a weapon in order to assault a specific patient and that the question whether the Claimant did in fact intend to use the weapon is disputed and that the allegation that he incited other patients to use the weapon is only partly supported by the contemporary notes. It is also the case that the Panel’s conclusion that the Claimant poses a serious risk of harm to others and that his continued care in conditions of medium security would put fellow patients and staff at grave risk of harm appear to have been based in part on a finding that the Claimant had made the weapon with intent to cause harm to others. That finding was plainly based on the assertion to that effect in the reports of Dr Vandenabeele and Dr Sengupta and in ignorance of the Claimant’s dispute of that allegation. It is also the case that the Panel does not appear to have been made aware that it was the Claimant who handed in the first weapon and disclosed the whereabouts of the second one to the nursing staff (albeit only after a shutdown was implemented to facilitate a search by hospital staff) and that he had asked to be moved from the patient whom he threatened, which Ms Jolly submitted was evidence that the incident was an attempt at manipulation of hospital staff by the Claimant to achieve his objective rather than evidence of a real intention to harm the other patient.

However it is also in my judgement clear from the reports of Dr Vandenabeele and Dr Sengupta and the Panel’s reasons that in each case the assessment of the risk posed by the Claimant was not based merely on the reported facts that the Claimant had intended to use the weapon to assault the other patient and/or that he incited other patients to do the same.

As to Dr Vandenabeele it is clear that he based his assessment in part on the fact of the Claimant having manufactured the weapons and of his having hidden them so that if they were found by other patients, they would represent a danger irrespective of the Claimant’s own intentions.

In the case of Dr Sengupta it is clear that he based his assessment that the Claimant was at high risk of future violence on the whole of his history of interpersonal violence and high anti social features, which included what he described as two other very serious incidents of violence apart from the triggering event, namely the index offence when the Claimant was described as taking his victim hostage and subjecting him to both physical and psychological torture as evidenced in the witness statements and the occasion when he absconded from medium security and arrived back at his victim’s house with a plan to kill him.

Dr Sengupta found that the Claimant posed a high risk of subverting security and absconsion and all these matters contributed to his assessment that the Claimant posed a grave and immediate risk to others.

Similarly the Admissions Panel, in contrast to the previous Admissions Panel which declined to admit the Claimant based on the index offence and the absconding incident, included among their reasons for his admission to high security both the serious index offence of hostage taking and the Claimant’s history of escaping custody. It also cited evidence of high psychopathic traits, which of course are a matter of clinical assessment rather than based on particular historical incidents.

It is notable that the Claimant has not adduced expert psychiatric evidence to support an assertion that if the Claimant’s version of events were true, these other matters to which I have referred and upon which in part it is in my judgment clear that the referring and assessing psychiatrist and the Admissions Panel based their assessments, coupled with the undisputed aspects of the triggering incident, would not have justified a conclusion that the Claimant could not be safely contained within the security available at a medium security unit and that no lesser degree of security than that available at Broadmoor would provide a reasonable safeguard to the public. It is of course a highly material fact that, irrespective of the Claimant’s own intentions and whether or not he incited other patients to use the hidden weapon to attack the patient to whom he had taken a dislike, he admitted having hidden the second weapon in the hospital. The danger inherent in the risk of the weapon being found by another patient speaks for itself.

Notwithstanding the force of these points, they do not in my judgment go so far as to lead inevitably to the conclusion that, assuming that the Claimant’s version of events is correct, if the Admissions Panel had had an accurate and complete version of events and had found the facts to be as they are contended for by the Claimant, it would necessarily have reached the same assessment as to risk.

If for example the Admissions Panel had been informed that the Claimant handed in the first weapon voluntarily to a nurse, then asked to be separated from the identified patient, and, that having been refused, revealed the location of the second weapon to the hospital staff, it cannot in my judgment be ruled out that the Admissions Panel might have reached the view that, despite the Claimant’s subsequent boast that he intended to use the weapon, there was no such intention. Nor in my judgment can it be ruled out that on that basis the Admissions Panel might have taken a less grave view of the triggering incident or that it might have affected its overall assessment of the degree of risk posed by the Claimant against a background in which the two previous incidents had not been considered by the previous Admissions Panel to justify his admission to Broadmoor.

That being so I would not accept Mr Hyams’s first submission. However it does seem to me that there is force in his second submission. Whatever the theoretical merits of a substantive challenge to the decision to transfer the Claimant may be, they remain hypothetical. The fact is that the Claimant has expressly abandoned his substantive challenge to the decision to transfer him to Broadmoor. He does not invite me to find that it was a breach of his Article 8 rights. Nor does he invite me to quash the decision and order his transfer back to a medium security hospital or to order a reconsideration by Stockton Hall and/or the Broadmoor Admissions Panel as to whether he should be admitted to Broadmoor and transferred from Stockton Hall.

It was argued on behalf of the Claimant that he has an interest in establishing that the decision to transfer him to Broadmoor was made in unlawful breach of a duty to act fairly because that may affect any subsequent request on his part to the authorities in Broadmoor to agree to his transfer to a medium security hospital. That submission in my judgment is not well founded. The decision to transfer the Claimant from medium to high security was made pursuant to the statutory powers conferred by s 19 of the 1983 Act and Regulation 7. The effective decision was that made by the Broadmoor Admissions Panel upon the referral of the Claimant by Stockton Hall pursuant to the detailed procedure laid down in the referral procedure set out in Broadmoor’s Admissions Panel Operational Policy.

However I was not informed of any similar or parallel procedure governing consideration by Broadmoor or a proposed receiving medium security hospital of requests by patients at Broadmoor to be transferred to medium security hospitals. (The proposed transfer in R v The Secretary of State for the Home Department ex parte Harry [1998] 1 WLR 1737 was of a patient detained under a restriction order and was considered pursuant to procedures fashioned specifically to such patients).Whatever may be the procedural requirements imposed by the common law on the process of deciding whether a patient should be transferred from a medium security hospital to a high security hospital such as Broadmoor, if any, it does not follow that the same requirements would necessarily be imposed on Broadmoor and/or the proposed receiving medium security hospital when dealing with a subsequent request for a transfer out of Broadmoor.

It is pertinent to observe in this context that transfer from a high security to a medium security or any other hospital is governed separately by s 123(2) of the 1983 Act which provides that, without prejudice to any other provisions of the Act, the Secretary of State may give directions for the transfer of any patient who is for the time being liable to be detained in a hospital in which high security psychiatric services are provided either into another hospital at which they are provided or into one at which they are not. Different practical considerations may arise on a transfer from a high security to a medium security hospital including questions of funding and availability of beds.

There is a parallel between the Claimant’s concern to make sure that if, should he subsequently be transferred back to a medium security hospital, he were again to be considered for transfer to high security he should have a fair chance to prevent his return on the one hand and one of the reasons why Scott Baker J decided to hear the application in R (C) v SW London Mental Health Tribunal, namely that the point might prove of more than academic interest to the Claimant in that case because there was at least a possibility that he might find himself again detained under the 1983 Act in the future. However the parallel is not in my judgment an exact one. In that case the question raised was a general one which was capable of precise formulation, namely what was the time within which an application to he Mental Health Review Tribunal must be heard so as to comply with obligations in Article 5 (4) of the ECHR. That question was susceptible of and indeed received from the Court of Appeal an answer applicable to all cases.

By contrast it is in the nature of the requirements imposed by a common law duty to act fairly that they are liable to change in ambit, scope and extent depending on circumstances. It would not necessarily follow from a finding that the decision to transfer the Claimant to Broadmoor was made in breach of particular requirements of a common law duty of fairness that all subsequent referrals of patients from medium to high security hospitals would be subject to identical procedural requirements. As discussed below there may be a variety of important factors which could affect the nature, scope and extent of any requirements imposed by a common law duty to act fairly.

On the other hand the nature of the claim based on an alleged breach of Article 6 is arguably a closer parallel to the R (C) v SW London Mental Health Tribunal case in that it arguably lent itself, at least as advanced by the Claimant, to a more general answer.

I see the greatest force in the Claimant’s submission that, as in the R (C) v SW London Mental Health Tribunal case, the issues raised in this claim are of general public importance that it is in the nature of the unique vulnerabilities of detained patients that there will always be significant difficulties in challenging the transfer process on their behalf and that the opportunity to challenge the fairness of the procedure at the same time as a challenge to the substantive decision is likely to be infrequent.

In those circumstances, leave having been given by Kenneth Parker J because it seemed to him that the claims raise arguable grounds concerning the legal fairness of the procedures for transfer that are of general importance and that merit review, I decided on balance that I should proceed to adjudicate upon them. However I do so not without reservations as to whether it is appropriate to adjudicate on claims which are largely academic so far as the Claimant is concerned and conscious that there is a limit to how far it is helpful to do so from a wider perspective given that they are necessarily fact sensitive.

In her first witness statement dated 30 September 2010 Ms Jolly asserted that transfer to Broadmoor would delay the Claimant’s release for several years. She based this assertion on a statement on Broadmoor’s website that the average stay at Broadmoor is about eight years and an assertion that release from high security conditions is extremely rare and a further period in medium and then low secure conditions is usually required before discharge, as noted by Lightman J in Ex parte Harry:

“Discharge directly from a special hospital like Broadmoor is extremely rare; a staged discharge is more usual, beginning with authorised day visits from Broadmoor, followed by a period of a trial leave to an RSU [Regional Medium Secure Unit], then a formal transfer to an RSU with further transfers to local hospitals and then to hospitals, culminating in a conditional discharge.”

This assertion was not challenged by Dr Murray in his first witness statement dated 24 February 2012. At the hearing Mr Hyam asked for permission to adduce evidence in response to Ms Jolly on this point, even though his principal submission was that there is a material distinction between a decision to transfer a patient to a high security hospital and a decision to allocate or maintain a category A status for a prisoner. Whereas it would be unthinkable for a category A prisoner to be released from prison direct, a patient detained even in a high security hospital must be released if he ceases to suffer from a mental disorder, even if he remains dangerous. Thus, unlike what is at stake in the category A decision, a decision to transfer a patient to a high security hospital does not directly affect the liberty of the subject.

In view of the importance of the issue I gave permission at the hearing to the Defendant to adduce evidence in response to Ms Jolly. This came in the form of an additional statement from Dr Murray dated 22 April 2012. Dr Murray qualified his evidence on the length of stay in high security conditions by stressing that the type of disorder under consideration in this case, borderline personality disorder, is inescapably a life-long disorder. Patients with it will typically experience periods of crisis requiring admissions intermittently for many years until the disorder gradually remits, which is usually in the fifth and sixth decades. On that basis the duration of any single episode of detention under the 1983 Act will not represent the totality of the detention an individual experiences.

Dr Murray said that typically a period of treatment would last not less than four years in high security, whereas for patients managed in less secure conditions this process may be faster because the inherent problems with engagement are less. Dr Murray produced a chart showing that the mean length of stay at Broadmoor for patients discharged between 1 January 2009 and 31 December 2011 was 5.9 years, a reduction from the 8.5 years referred to in the Harry case. For patients admitted from medium secure units the mean was 5.7 years. However, the mean length of stay for patients discharged to medium secure units was 7.3 years, the difference between that figure and the mean of 5.9 being accounted for by the shorter length of stay for patients discharged for deportation, to other high security hospitals or to prison. In the context of the issue presently under consideration it seems to me that the relevant figure is 7.3 years since discharge to prison, other high security hospitals or deportation are unlikely to be staging posts to ultimate discharge from detention back into the community.

Dr Murray stated that all forensic services discharge to the next lowest level of security as part of the rehabilitative process.

Under the heading “Impact of admission to high secure services on overall length of stay as a detained patient” Dr Murray said that there is no national forensic database from which it would be possible to compare the overall duration of care whilst detained under the 1983 Act in conditions of medium and high security for patients who are matched in terms of both disorder and offending history.

Two witness statements were served on behalf of the Claimant in response to Dr Murray. The first, dated 26 April 2012, was from Dr Steffan Davies, a consultant forensic psychiatrist with five years experience as honorary consultant forensic psychiatrist at Rampton and two years as the Rampton representative on the national security forum bringing together representatives from Ashworth, Broadmoor, Rampton and the Prison Service. He had previously given a witness statement on the differences in security between high and medium security psychiatric units to which I refer below.

The second witness statement, dated 30 April 2012, was from Ms Mavis Campbell, a solicitor specialising in mental health and human rights law. She is an assessor and a member of the Law Society’s Mental Health Review Tribunal panel. She represents restricted mentally disordered offenders detained in various high and medium security hospitals and most of her work is undertaken in Rampton.

Objection was taken by the Defendant and the Interested Party to the submission of Ms Campbell’s statement, which was said to go beyond the permission which it was understood I had given at the hearing. In my judgment that opposition was misconceived. Ms Jolly had placed firmly in issue in her first witness statement dated 29 September 2010 the assertion that transfer to Broadmoor would delay the Claimant’s release for several years and supported it by evidence. It was the Defendant, who had chosen not to challenge that evidence and had to apply 18 months later at the hearing for permission to serve evidence in response. In those circumstances I could see no unfairness in the Claimant being afforded a right to serve evidence in response. Nor do I consider that Ms Campbell’s evidence goes beyond the permission I gave.

Dr Davies contrasted the average admission to medium security, which he said was generally accepted to be around three years, with the six years quoted by Broadmoor. However, he pointed out that the length of time spent in secure care is not determined by the level of security per se but by the patient’s clinical condition, risk profile and other factors. Those who present a “grave and immediate risk” are likely to require a longer period of treatment.

However, he also said that being moved from medium to high security will almost inevitably increase the length of a patient’s stay in secure care, not only by virtue of the time required to provide the treatment needed but also because of the delays caused by the process of transfers between levels of security from medium to high and presumably in the future from high back to medium security. The need to transfer from medium to high security would in general be a negative factor in considering a transfer from high security to low, open or community placements in the future. There are often considerable administrative and clinical delays involved in transfers between levels of security due to the needs for referral, assessment by receiving clinical teams, applications where relevant to the Ministry of Justice and bed availability.

Dr Davies also said that in his experience and knowledge from other services discharge to the community from high security remains very rare, although the development of care pathways would occasionally and unusually allow a move from high to low security omitting medium security. In practice this meant that it would be very unlikely that the patient will be found to be safe to be released until they have spent time in medium security.

In his experience, in considering the discharge of patients who have at one stage fulfilled the admission criteria for high security, the Mental Health Review Tribunal places significant weight on evidence that the patient is ready to be conditionally discharged and will have a realistic prospect of surviving in the community. That can most reliably be gained by the experience of testing out in different levels of security, for example through medium and low security. Before a conditional discharge there would usually be unescorted leave in the area the patient would return to. That experience is best gained via leave from a local facility such as medium secure pre-discharge, low secure or rehabilitation. That process is logistically very difficult to carry out from high security and usually includes a successful period of treatment in medium security.

Dr Davies said that an admission to high security is highly likely to lead to a longer admission to secure care, particularly if it is a backwards move from medium security. There are process issues which can themselves lead to a significant prolongation of a secure admission independent of the clinical and risk issues. He was aware of no evidence demonstrating that admission to high security does not add to a patient’s time in secure care as it did at the time of the Harry case.

Dr Davies considered that the figures provided by Dr Murray confirmed the situation outlined in the Harry case. Of 171 discharges from Broadmoor, 120 were to medium security and only four directly to the community. The reduction in the length of admission following successful treatment since the Harry case from 8.5 to 5.9 years on average did not alter the effect of being detained in high security on the prospects of release. He agreed with Dr Murray’s statement that forensic services discharge to the next lowest level of security as part of the rehabilitative process, which he said means that placing a patient in high security increases the time it takes to progress through the various levels to release.

Dr Davies’ conclusion was that the position outlined in the Harry case remains in place today, although lengths of stay overall are likely to be reduced by improvements in treatments and greater availability of medium secure beds. It followed, he said, that placing a patient in high security is very likely to increase their overall time spent in detention.

Ms Campbell stated that in her experience of representing patients in high security they are usually expected to move from high security at least to medium security before discharge is considered. In medium security such patients are usually expected to do refresher treatment programmes to prepare them for discharge into the community. Medium and low security units are designed for rehabilitation in a way that high security hospitals are not.

Community leaves for rehabilitative purposes under section 17 of the 1983 Act are no longer available from high security. Such leaves will only be authorised by the Secretary of State for specific rehabilitative purposes such as familiarisation to a medium secure unit when an individual has been assessed as suitable for transfer to medium security and an appropriate medium secure service has been identified. As a result patients in high security will almost always be expected to be tested out in conditions of medium security before discharge will be considered, as set out in Harry. Indeed in her experience the treatment provided by the high security hospital is often only focussed on preparing the patient for medium security, where it is anticipated that further treatment and the important rehabilitative aspects of treatment will be carried out. That means that transfer to high security inevitably leads to a longer period in detention for the patient concerned, independently of the severity of the patient’s mental disorder.

Ms Campbell also stated that transfer to high security will lead to the patient experiencing a longer period in detention due to administrative delays in transfers down. Such transfers require the agreement of the gate-keeping authority (the catchment area body responsible for funding a bed in medium security). That is because the patient is moving from a nationally funded regime (high security) to a regionally funded one (medium security). The agreement of the regional gate-keeping authority is needed for funding purposes even if the patient is not going to be transferred to their catchment area unit.

Disagreements between a high security hospital, which considers a patient ready for transfer down, and the gate-keeping authority, which does not, can often go on for some time. The high security hospital often has to revisit everything they have done with the patient and adhere to the further treatment demands of the gate-keeper in order to persuade the gate-keeper to agree to fund a bed in medium security. That process can often take six to twelve months and in some cases takes several years.

Some, but not all, catchment areas may have an appeals process if the high security hospital is unhappy with the gate-keeper’s refusal to find a bed in medium security. That gives the high security hospital, but not the patient, a right of appeal against the gate-keeper’s decision. In her experience the high security hospital is often reluctant to appeal until they have addressed all the concerns raised by the gate-keeping authority about the patient’s readiness for transfer to medium security and exhausted every other option.

Even after the gate-keeping authority agrees to fund a bed for the patient in medium security, the patient will then have to be assessed and accepted by the unit that will take him or her, if that is not the gate-keeping psychiatrist’s unit. That will incur an additional assessment process and further administrative delays. Whether a patient is returning to their catchment area medium secure unit or not, they will also have to undergo the necessary indeterminate wait for a bed.

Ms Campbell stated that patients in high security who have previously been transferred from a medium secure facility may face additional difficulties being accepted back into the same facility, as they will be seen as having “failed” and as being difficult to manage. For such patients the threshold for acceptance back may therefore arguably be higher, yet the patient may have no option but to wait until they are accepted (or have met the higher threshold requirements), especially where the unit in question is their catchment area unit.

Low secure units will usually refuse to take people straight from high security because they are seen as too dangerous.

As to recommendations by a Mental Health Review Tribunal for a transfer out of a high security hospital, Ms Campbell stated that in her experience such a recommendation is often not followed through by the high security hospital where it was in opposition to the recommendation being granted. She has rarely been able to challenge a failure to follow the Tribunal’s recommendation because it is at its highest only a recommendation. In addition, because the process of moving someone to lower security services involves agreement from several different parties (the hospital, the gate-keeper, the receiving unit and the Ministry of Justice, most of whom were not party to the Tribunal proceedings and feel little by way of obligation to comply with the resultant recommendation), a challenge necessarily would involve breaking down which decision actually caused the delay and working out whether all avenues of alternative resolution have been explored. As such, few cases pass the threshold for being challengeable. As a result, she has often had to adopt the approach of seeking further recommendations from the Tribunal until they start to stack up and it becomes harder and arguably more unreasonable for a hospital and other bodies to resist following them. However, the patient often has to wait another year before seeking another recommendation from the Tribunal because of the statutory limits on the number of applications which can be made.

Ms Campbell said that she has known of very few patients who are discharged into the community directly from high security. At most Tribunals she has attended it is seen as an impractical and unrealistic objective for the patient to achieve. Even in the case of patients in medium security hospitals many Tribunals prefer to see patients tested on unescorted community leave prior to agreeing discharge. That is impossible from within the high security estate.

Ms Campbell’s conclusion was that transfer to high security will inevitably delay the patient’s release for reasons that are unconnected with (although maybe in addition to) the severity of the patient’s mental disorder. Those reasons include the need for the patient to follow a step-down discharge via conditions of lesser security so that they can undergo refresher treatment programmes, undertake rehabilitative community leaves and demonstrate that they can behave safely in less restrictive conditions. In addition administrative delays in transferring patients (both within the high security hospital itself to lower secure wards and then onto lesser security) caused in part by the lack of a mechanism for enforcing Tribunal recommendations, will add significant time onto the patient’s overall detention, particularly when that transfer is from high to medium security. She therefore believed that the statement of Lightman J in Harry continues to be an accurate reflection of current practice and that patients who are transferred to high security will face additional time in detention for reasons unconnected to the severity of their mental disorder.

The test set out in Section 72 (1) of the 1983 Act to be applied by the First Tier Tribunal (Mental Health) in determining whether a patient (other than one detained for assessment under Section 2) is suitable for discharge requires the Tribunal to direct the discharge if it is not satisfied among other things that he is then suffering from a mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment. As pointed out by Mr Hyam a patient may pass that test even if he is assessed by Broadmoor as constituting a significant risk to others.

However it does not in my judgment follow from that that a decision to transfer a patient from a medium security hospital to Broadmoor does not have the potential to have a significant adverse effect on the time that will elapse before the patient is ultimately discharged from detention under the 1983 Act.

The reality is that the position remains broadly similar to that described by Lightman J in ex parteHarry. Discharge directly from a high security hospital like Broadmoor is extremely rare. A staged discharge involving normally at least a period in a medium security hospital is much more usual. There are reasons unconnected with the severity or nature of a patient’s mental disorder which make it likely that a patient who is transferred to a high security hospital will experience a longer passage of time before he is ultimately discharged than would be the case if he were not so transferred. Those reasons are as set out in the evidence to which I have referred.

Mr Chamberlain on behalf of the Secretary of State accepted in the context of the question whether the transfer to a high security hospital interferes with civil rights for the purposes of Article 6 that a patient who has been transferred to a high security hospital, but who no longer requires conditions of high security, should be transferred to conditions of lower security as soon as possible. In this context he referred to the statement in Broadmoor’s Admission Guidelines that: “It is an unacceptable infringement of a patient’s rights to detain them in a higher level of security than they require.” However he submitted that if, contrary to what should happen, a patient no longer requires to be detained in a high security hospital, but is not transferred to a lower security setting, because of delays in securing a bed or disputes between detaining authorities or otherwise, then it is the failure to transfer him out of high security hospital – not the decision to transfer him into it – which lengthens the likely total period of his detention.

That is in my view an unrealistically narrow analysis of the effect of a transfer into a high security hospital. First it ignores the fact that, even if there are no delays between the point at which such a patient no longer requires to be detained in high security conditions and the point at which it is possible for him to move back to a medium security hospital, the likelihood that once he is transferred out of the high security hospital there will be a period spent in medium security conditions means that the original transfer into the high security hospital is for that reason likely to delay his ultimate date of release beyond that which would be the case without such a transfer.

Further in the light of the evidence that delays in effecting a transfer back to a medium secure hospital after either the high security hospital has assessed or the Tribunal has recommended that such a transfer is appropriate are at its lowest commonplace, it is in my judgment artificial to suggest that the inevitable consequent delay in the ultimate date of discharge from detention is the result not of the original decision to transfer the patient into the high security hospital but only of the subsequent failure to transfer him out of it. The fact that it is caused by the latter does not prevent it also from having been caused by the former.

Dr Murray accepted that neither the patient nor the current detaining hospital can override the view of the proposed receiving hospital. Thus even where Broadmoor assesses that a patient no longer requires to be detained in high security conditions, whether of its own motion or in response to representations from the patient, or where the Tribunal so recommends, Dr Murray accepted that such assessment or recommendation cannot be given effect to without the explicit agreement of the receiving service. It is, in short, foreseeable when a patient is transferred to Broadmooor from a medium security hospital, that a subsequent conclusion by Broadmoor or the Tribunal at a later date that he no longer requires to be detained in high security is not likely to lead to an immediate transfer back to a medium security hospital. Absent judicial review proceedings such a conclusion will be a necessary but not sufficient condition of transfer out of Broadmoor. Although the length of time that will elapse between such a conclusion being reached and the actual transfer of the patient to a medium security hospital cannot be predicted the fact that there is likely to be a period of delay is foreseeable.

The Potential for more restrictive detention conditions

The Evidence

There are two areas in which statutory provisions either require or permit the managers of high security hospitals to restrict a patient’s free access to and use of postal and telephone communications which do not apply to patients in medium security hospitals.

Section 134 (1) of the 1983 Act provides that a postal packet addressed to any person by a patient detained in a high security hospital and delivered by the patient for dispatch may be withheld from the postal operator if the managers of the hospital consider that it is likely to cause distress to the person to whom it is addressed or to any other person or to cause danger to any other person. Section 134 (2) provides that a postal packet addressed to a patient detained in a high security hospital may be withheld from him if in the opinion of the managers of the hospital is it necessary to do so in the interest of the safety of the patient or the protection of other persons. These provisions do not apply in respect of postal packets addressed by a patient to or sent to a patient by various persons such as ministers of the crown and lawyers. Section 134 (4) provides that the managers of a hospital may inspect and open any postal packet for the purposes of determining whether it is one to which either subsection 1 or 2 applies and in the case of a postal packet to which either subsection does apply whether or not it should be withheld under that subsection.

Section 1 of the Regulation of Investigatory Powers Act 2000 makes it an offence for a person intentionally and without lawful authority to intercept any communication in the course of its transmission by means of a public postal service or a public telecommunications system. An exception to this general prohibition is provided by Section 4 (5) which authorises conduct in high security hospitals in pursuance of and in accordance with any direction given under Section 8 of the National Health Service Act 2006. Section 8 of the 2006 Act confers a general power on the Secretary of State to give Directions to NHS Trusts and other bodies. The relevant directions given pursuant to section 8 which were in force at the time of the Claimant’s transfer were the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000. Those directions were replaced on 1 August 2011 by the High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2011which are now in force.

The provisions in the 2000 and the 2011 Directions are broadly similar save that the latter now impose mandatory duties to x-ray and inspect all incoming post addressed to patients in high security hospitals. Paragraph 26 (1) and 26 (2) of the 2011 Directions provide that arrangements must be made in respect of high security hospitals for incoming postal packets addressed to a patient to be respectively x-rayed and opened and inspected by an authorised member of staff. As with the other relevant directions the requirement to open and inspect does not apply to postal packets from lawyers and other specified categories of persons. The equivalent Direction in the 2000 Directions did not require incoming postal packets to be opened and inspected by an authorised member of the staff but rather conferred a power for that to be done.

Both sets of Directions imposed a requirement for any outgoing postal packet from a patient in a high security hospital other than letters or cards to be packaged and sealed by the patient on their ward and in the presence of an authorised member of staff. They also provided a power for outgoing letters or cards to be opened and inspected by an authorised member of staff (paras 24 and 28 respectively).

Paragraph 31 of the 2011 Directions provides that a patient may only make an outgoing telephone call to a telephone number pre-programmed by a member of staff using the pre-programmed system and such telephone numbers must be approved by the responsible clinician having consulted with the clinical team. Paragraph 27 of the 2000 Directions provided that where a hospital maintained a telephone system whereby a patient could only dial numbers that had been pre-programmed into that system by a member of staff a patient might make a call to any of those number. Where that did not apply a patient might only make telephone calls to the persons and numbers on a list approved for that purpose by the clinical team responsible for the patient. In that case a member of staff was required to observe the patient at all times during the telephone call. In addition where a patient was assessed as presenting a high risk of escaping or organising action to subvert security and safety in collaboration with others or where a telephone call was likely to cause distress to the person called or to the patient a member of staff was permitted to listen to the patient making the call.

Paragraph 32 of the 2011 Directions requires that the patient be prohibited from receiving an incoming telephone call save where it has been pre-arranged by a member of staff and authorised by the director of security or where in the opinion of a member of staff the urgency of the case is such that he should receive it or there are compassionate grounds for allowing him to do so. In such cases a member of staff must observe the patient at all times during the telephone call and may monitor it in accordance with a direction under paragraph 34. In the case of all other incoming telephone calls a member of staff must answer the call and inform the patient that it has been received and the main points of the conversation between the caller and the member of staff.

Paragraph 28 of the 2000 Directions required a member of staff to take all incoming calls and then pass a message about it to the patient save where the call was about an urgent or compassionate matter in which case he might permit the patient to speak to the caller. In such a case a member of staff was required to observe the patient at all times during the telephone call. Where the patient was assessed in accordance with paragraph 30 in the same way as under paragraph 27 a member of staff was permitted to listen to the patient receiving the call. As in the case of outgoing telephone calls the patient had a right to have the decision reviewed by the chief executive of the hospital.

Paragraph 34 of the 2011 Directions requires that if following a risk assessment the patient’s clinical team decide that he presents a higher risk of escaping or organising actions to subvert the safety and security of others or there is a need to protect the safety and security of the patient or of others it must consider including in his risk management plan arrangements for an authorised member of staff to monitor and record his incoming and outgoing telephone calls. Where the plan so requires the patient’s telephone call may be monitored and recorded and the patient must be informed of the reasons and of his right to have the decision reviewed by the Care Quality Commission. In addition paragraph 34 permits an authorised member of staff to record up to ten percent of incoming or outgoing patients’ telephone calls over a seven day period and requires him to listen to any recording of such calls. Paragraph 29 of the 2000 Directions made similar provisions save that where a member of staff recorded a random ten percent of the outgoing and incoming telephone calls of patients he was permitted rather than required subsequently to listen to the recorded calls.

Section 134A of the 1983 Act requires the Care Quality Commission on an application by a patient to review a decision to withhold a postal packet and confers on it a power to direct that it is not to be withheld, a direction with which the hospital managers must comply. Regulation 4 of the Care Quality Commission (Additional Functions) Regulations 2011 requires the Commission, on an application by a patient, to review a decision made pursuant to direction 34 (5) of the 2011 Directions that his or her telephone calls be monitored and recorded and the hospital is required by direction 34 (9) of the 2011 Regulations to comply with any directions given by the Commission.

None of the restrictions to which I have referred above which are required or permitted to be applied to patients in a high security hospital is required or permitted by statute or statutory instrument to be applied to patients in a medium security hospital. There are no equivalent regulations for medium security hospitals to the 2000 or 2011 Directions. Inspection of post in medium security hospitals is unlawful. The Mental Health Act Code of Practice, which does apply to medium security hospitals, provides that hospital managers should ensure that patients can use coin and card-operated ward telephones without being overheard and that hospitals should make every effort to support patients in making and maintaining contact with family and friends by telephone and to enable such calls to be made with appropriate privacy. The principle that should underpin hospital or ward policies on all telephone use is that detained patients are not free to leave the premises and that individual freedom to communicate with family and friends should therefore be maintained as far as possible. (Paragraphs 16.3, 16.4).

Mr Chamberlain on behalf of the Secretary of State submitted, in the context of the question whether transfer to Broadmoor interferes with “civil rights” for the purposes of Article 6, that transfer to a high security hospital does not entail restrictions on civil rights even though it triggers a legal regime in which (subject to proper safeguards) decisions may be taken which do restrict them. Thus for example he submitted that any restrictions on a patient’s right to make unmonitored telephone calls occurs only when a decision is made under Direction 34 of the 2011 Directions and not on transfer. He did however accept that transfer to a high security hospital does of itself trigger restrictions on the right to send and receive correspondence without monitoring because interception of postal communications is mandatory at high security hospitals. However he submitted that that fact does not on its own transform an essentially administrative decision into a contestation for the purposes of Article 6.

I refer to that argument below in the context of Article 6. However for present purposes it is clear that transfer to a high security hospital has by virtue of the transfer potentially adverse consequences for a patient in terms of unrestricted access to and use of postal and telephone communications. It is true that some of those consequences may not materialise, either because Broadmoor does not exercise a relevant power or because there is no adverse risk assessment triggering its right to exercise such a power. However some at least of those adverse consequences flow automatically from the transfer itself by reason of the requirement to inspect postal packets and more generally, even in the case of such restrictions as are permissive rather than mandatory, a patient, on transfer, loses the right which he possesses while in a medium security hospital for his post not to be withheld and his telephone calls not to be monitored.

Dr Murray acknowledged that the inspection of letters which is undertaken at high security hospitals is over and above practice in other services. However he stated that of 2,340 items of mail referred by postal monitors at Broadmoor to the patient’s responsible clinicians for decisions as to whether the mail should be allowed to be sent out or to be forwarded to the patient concerned only 41 were actually withheld. (As to the Claimant, Dr Murray stated that of his incoming letters five were withheld in the early part of his admission to Broadmoor but none since May 2011. However in considering whether the more stringent restrictions in high security hospitals is a factor which should contribute to a conclusion that the decision to transfer should engage the common law duty of fairness it does not seem to me that the extent of such restrictions subsequently applied to this particular claimant is of any assistance.) Dr Murray stated that the Claimant has access to a telephone to make outgoing calls from Broadmoor but not incoming ones which would typically be allowed at a medium secure unit. Broadmoor’s practice on receipt of an incoming telephone call at a ward is to make arrangements for the patient concerned to make an outgoing call in response.

Dr Davies in his first witness statement stated that whilst high levels of patient supervision can be provided in any facility the general level of supervision in high security hospitals is at a greater level and more intrusive into an individual’s privacy than in other hospitals. He stated that searching of patients and areas occurs more frequently and extensively in high security. Associated with this are restrictions on the type and volume of patients’ possessions which is more restrictive in high than medium security hospitals. Paragraphs 5 and 6 of the 2011 Directions permit respectively rub down searches of patients and searches of patients involving the removal of clothing other than outer clothing on the authority of the patient’s responsible clinician or the medical director who must take into account the interests of the patient, the safety of staff, patients, visitors and visiting children and the security of the hospital. The position in medium security hospitals is governed by the Code of Practice which provides that hospital policies on searches of patients, their belongings and surroundings may extend to the routine and random searching without cause of detained patients if necessary without their consent but only in exceptional circumstances.

Dr Davies stated that access to information technology and in particular access to information on the internet and communication via email and social networking is heavily restricted in high security hospitals but usually less so in medium security hospitals. As to visits, Dr Davies stated that in high security the scrutiny of those allowed to visit and of those visitors when they attend is greater, which serves to restrict the number of individuals who are approved to visit, to place them under greater restriction when they visit and the visits are more heavily supervised.

More generally Dr Davies accepted that some aspects of the regime within high security may paradoxically at times be less restrictive than in medium or low security. For example the facilities available within the secure perimeter such as therapy, workshops recreation and support are much more extensive. He also accepted that high level of restrictions for example two to one observation in a locked psychiatric intensive care unit can operate in any hospital. However in a high security hospital many of the restrictions are fundamental to the regime rather than a transitory response to increased risk and the restrictions are at a much greater level than in a medium security hospital.

Dr Murray stated that if the Claimant had remained in medium security it was likely that he would have spent the greater part of the time since he was admitted to Broadmoor in seclusion, where the impact upon free access for visitors would probably be no different in practice to the arrangements at Broadmoor. Medium security and high security hospitals each provide a range of wards and while the most open conditions in medium security are far less restricted than anything in high security, provision at the highest end of medium security in high dependent wards and in seclusion has a similar impact upon the free access to family as in high security hospitals.

Indeed the rehabilitation wards in high security hospitals provide a greater degree of freedom within the secure perimeter for patients than the high dependency wards in medium secure hospitals would provide. The executive management of secure clinical care requires a range of wards with a range of regimes which vary in their level of restrictions or liberty to accommodate the needs of the various patients so that there is some overlap between high and medium security. At any given time the more settled patients in high security rehabilitation wards will require a less restrictive regime than the most acute patients in medium security. He acknowledged that the Claimant had required the highest level of secure provision within Broadmoor. Although he asserted that the assessment of Dr Sengupta and Dr Vandenabeele that transfer was appropriate had been vindicated by the passage of time that does not of course address the question whether the consequences of the transfer were or were not potentially adverse to the Claimant in terms of imposing or exposing him to the risk of more stringent restrictions.

Conclusion

It is in my judgment clear on the evidence to which I have referred that transfer to a high security hospital results in an inevitable increase in the restrictions to which a patient is or maybe exposed. Interference with unrestricted access to and use of postal and telephone communication which is unlawful in medium security hospitals is or maybe lawful in high security hospitals. Some interference is mandatory – the opening of postal packets. Other interference is permitted or may be permitted depending on the outcome of risk assessment. There is greater provision for body searches and searches of areas and there is greater monitoring and control of visits.

The extent to which in practice such interference actually intrudes into a patient’s private life will vary and is dependent on circumstances. While conditions at the highest end of medium security in high dependency wards and in seclusion may have a similar impact on free access to family as anything in a high security hospital, it is nonetheless the case that the most open conditions in medium security are far less restricted than anything in high security hospitals and some of the restrictions in high security hospitals to which I have referred are fundamental to the regime rather than a transitory response to increased risk as is sometimes the case in medium security hospitals. As Dr Vandenabeele put it, it is true that within conditions of high security the Claimant would be subjected to a more restrictive hospital regime. That is the very reason why he was referred there because in Dr Vandenabeele’s opinion such restrictions were necessary and clinically indicated to safely manage his risks.

In the Grounds in support of the Claim it was submitted that the standards of common law procedural fairness were engaged by the decision to admit the Claimant to Broadmoor applying the approach in R v Secretary of State for the Home Department ex parte Duggan [1994] [3 All ER 277] and R (Mohammed Ali) v Director of High Security [2009] [EWHC 1732] (Admin). That was for two reasons. First the additional security restrictions placed on the Claimant meant that the regime would be significantly more restrictive than that in a medium secure hospital. Second the Claimant’s transfer to conditions of high security was likely to delay his release because no doctor is likely to be willing to authorise his release until he has demonstrated that his risks can be managed in conditions of reduced security.

It was further submitted that there was failure to comply with standards of procedural fairness in three respects. First the Claimant was given no real opportunity to challenge the decision to transfer him to Broadmoor. Second there was failure to disclose the material that was said to justify the transfer decision at a time when representations could have been made. In particular the assessment report was not disclosed in advance of the decision. Third an oral hearing was required applying the approach laid down by the House of Lords in R (West) and R (Smith) v Parole Board (No.2) [2005] 1 WLR 350.

In the Detailed Grounds of Opposition Mr Hyam submitted that the decision to transfer was not procedurally unfair. It was carried out in accordance with paragraphs 30.13 and following of the Code of Practice (cited above) and pursuant to the 1983 Act. It is trite law that the level of procedural protection that applies to any particular decision affecting the terms of a patient’s detention depends upon what is at stake. The issue in the present case he submitted was the need to transfer the Claimant from conditions of medium security to conditions of high security because of overwhelming evidence that continued care in conditions of medium security would put fellow patients and staff at “grave risk of harm.”

It was submitted that the assessment of risks posed by the Claimant was quintessentially one of professional judgment to be made on all the evidence available. There could be and was no credible dispute about the existence of the risks given the factual circumstances which formed the basis of the request for admission. At its highest the Claimant sought to raise a dispute as to the extent to which the undisputed manufacture of a weapon and undisputed assertion that he stated that he intended to use it to stab the fellow patient’s neck was truly indicative of risk. That was not the kind of issue which would require an oral hearing to resolve. The views of the Claimant had been sought as to his transfer and he had been found to be in favour of it and in fact looking forward to it. It was not accepted that the Claimant’s Article 8 rights were even engaged, let alone violated on grounds that the transfer was not necessary or proportionate. The decision whether to transfer the Claimant was essentially an administrative decision in nature.

In his skeleton argument Mr Hyam submitted that the Claimant’s argument that common law fairness required an oral hearing before the Admission Panel prior to his transfer raised issues as to (i) what were the nature of the “proceedings” before the Panel, (ii) what issue, if any, was in dispute and (iii) whether that dispute required an oral hearing as a matter of fairness for its resolution. He submitted that the arguments were so similar to those raised in respect of Article 6 that they were considered together.

He submitted that the real issue to be decided by the Panel was a clinical evaluation of risk presented by the patient and having regard to that risk the propriety of his admission to Broadmoor by reference to the admission criteria which provide that patients must not be detained in higher levels of security than they require. Such a proceeding he submitted does not “determine” civil rights but is an administrative risk evaluation which, in terms of its administrative nature, has some similarities with the categorisation of prisoners within the prison service, see Brady v United Kingdom (1981) 3 EHRR 297 and the setting of licence conditions for a prisoner, see R (MA) v National Probation Service [2011] [EWHC 1332] (Admin).

As to what issue if any was in dispute Mr Hyam submitted that the Claimant’s argument amounted to no more than an assertion that the risk posed by the Claimant was not as serious as that which the Panel concluded. As to that there was no medical evidence to support that assertion. In reality there was no real dispute that the criteria for admission to Broadmoor were satisfied and the Claimant was seeking to rely in his updated skeleton argument on issues which could have been put on behalf of the Claimant had there been a fair procedure.

Such a dispute as there was did not require an oral hearing to resolve. The transfer was unanimously considered to be appropriate by the specialist panel convened to assess it. There could be and was no credible dispute about the existence of the risk given the factual circumstances which formed the basis of the request for admission. There was no contrary medical evidence. The views of the patient had been sought and he was in favour of admission to Broadmoor. In those circumstances the assessment of risk posed was one of professional evaluative judgment made on all the evidence available. Moreover it was a decision which had to be made promptly. Reliance was placed on the assertion by Dr Murray in his first witness statement that the process of transfer is an administrative one which relies on prompt assessment by experienced professionals of the necessary level of security which a patient needs in “real time”. Such matters should not be susceptible to a judicialisation of the decision making process – see R (King) v Secretary of States [2012] [EWCA] Civ 376 per Maurice Kay LJ at para 45 and Elias LJ at paras 93-97.

In her skeleton argument on behalf of the Interested Party Ms Hayes submitted that permitting representations by a patient or his legal representatives to the decision maker on a proposed transfer from medium to high security conditions would cause additional delay in the outcome of the transfer decision. The transfer was carried out lawfully pursuant to the procedures designated by the 1983 Act and the Code of Practice.

In oral argument Mr Squires posed three questions. (1) Do common law duties apply to a decision to transfer a patient from a medium security hospital to a high security hospital? (2) If so what did fairness require in this case? (3) Was it provided?

He submitted that the basic principle is that where a decision making power is conferred on a public authority absent clear statutory language it must be exercised fairly. Fairness almost always requires the person likely to be adversely affected by the decision to be afforded an opportunity to make representations to the decision maker. He placed reliance on the Category A cases. Where a decision is made as to a prisoner’s Category A status, reports are provided to the prisoner in advance and the prisoner or his representative is always able to make representations in writing and, where fairness requires, orally. By contrast the procedure laid down by the Broadmoor admissions policy provides a detailed procedure including a hearing and an appeal process neither of which is open to the patient. He is completely excluded from participating in the decision making process whether by making written representations or by attendance at the hearing of the Panel either himself or by a representative. That general practice Mr Squires submitted is a breach of the common law duty of fairness.

In this case the decision to admit the claimant to Broadmoor was taken on 2 September 2010. Before the decision was taken the Claimant had not been shown any of the relevant documentation. In particular he had not been shown the reports of either the referring psychiatrist or the assessing psychiatrist or any of the other papers placed before the Admissions Panel. Despite a written request by Ms Jolly on 19 August 2010 for copies of the application to Broadmoor and all supporting documentation and the assessment report as well as the date when the Admissions Panel would consider the application, there was no substantive reply until 1 September 2010 when she was informed that the case would be considered the next day by the Admissions Panel. In that letter Ms Jolly’s request on 19 August 2010 to attend the Panel as an observer was refused. According to Ms Jolly it had been refused orally by Dr Murray on 20 August.

Although in her letter dated 19 August 2010 Ms Jolly did not identify any objection to the proposed transfer or any grounds on which such an objection might be based, in the absence of the documentation which she asked for neither she nor the Claimant was in a position to know what was the factual and/or clinical basis of the proposed referral. Having been told on 15 September 2010 that the Claimant had been accepted for admission to Broadmoor Ms Jolly put the Defendant on notice that the Claimant did not wish to be transferred to high security conditions and did not believe that he met the criteria for admission to high security conditions. She expressed concerns that the Panel might not have had up to date and accurate information or the relevant thoughts and observations of the Claimant. On a cursory review of the background information produced by his current placement she expressed concerns about the accuracy and detail of the information before the Panel. She therefore asked for an opportunity to assist the Claimant in the submission of representations to the Panel, access to the documents before the Panel, a review of the referral by a freshly constituted Admissions Panel based on the Claimant’s representations and a stay of transfer pending a further review.

Having on 20 September 2010 received Dr Sengupta’s report Ms Jolly, in her letter before claim, repeated the request for a stay of the transfer pending an opportunity for the Claimant to make representations before a differently constituted Panel. She made detailed comments on Dr Sengupta’s report and criticisms in relation to his dealing with the alleged facts of the weapons incident. She submitted that the decision, despite being clinical, concerned an assessment of risk as a matter of fact and that fairness required that he should have had as a minimum the right to make representations in advance of the decision being made so as to comment on the evidence and to correct any factual or legal inaccuracies.

The material before the Panel was sent to Ms Jolly on 25 September 2010, as foreshadowed in Dr Murray’s letter dated 24 September 2012 in which he recorded Dr Vandenabeele’s view that the transfer should await no more than one week because of the risk posed by the Claimant pending transfer when he had nothing to lose and was inherently clinically high risk.

Mr Hyam submitted that Mr Squires’ analogy with Category A cases was misplaced. Neither the statutory nor the factual context of the decision to transfer the Claimant gave rise to a need for representations by the Claimant or attendance at an oral hearing. The basis on which a patient is detained under the 1983 Act is different from that on which a prisoner is detained. Unlike a Category A prisoner with no prospect of parole, a patient must be released if the criteria for his detention are no longer satisfied. A patient who no longer suffers from a mental disorder but nonetheless remains dangerous must be released. A decision whether to transfer a patient from medium to high security does not directly affect the Claimant’s lack of liberty which is ex hypothesi justified by the fact of his suffering from a mental disorder, whether the transfer is authorised or not. Although it was accepted that release from a high security hospital directly into the community is rare it was not the case that there is a relationship between the length of a patient’s detention and the level of security in which he is detained.

As to the statutory context, by operation of Section 19 and Regulation 7 it is only the referring hospital which has power to authorise a transfer. Unlike the position with Category A prisoners, Broadmoor has no power to mandate a transfer. It did not exercise the power of categorisation. It was merely exercising an administrative clinical health care function as an adjunct to the request for a transfer from the referring hospital. Broadmoor neither determined the Claimant’s right by its decision nor even authorised his transfer. The criteria for admission were decided by the hospital pursuant to general powers. As to the assessment of risk, although that involved assessing the factual evidence it was essentially a clinical evaluation - see for example Dr Sengupta’s description of the Claimant on examination as coming across as slightly superficial and mildly cold and detached and his reference to the Claimant having described the incidents of violence in a matter of fact way with little emotion attached to it.

Mr Hyam also relied on the fact that the Claimant could have asked the Mental Health Tribunal to recommend that he not be transferred to Broadmoor. Alternatively he could have asked the managers at Stockton Hall or on arrival at Broadmoor. He could either have asked the Broadmoor managers to be transferred back to Stockton Hall or he could have applied to the Mental Health Tribunal for a recommendation that he be transferred back to a medium secure hospital. That application was withdrawn.

In reply submissions Mr Squires took issue with the submission that transfer of a patient from medium to high security does not interfere with a patient’s rights. He relied on the statement in the Broadmoor admission criteria that “it is an unacceptable infringement of a patient’s rights to detain them in a higher level of security than they require.” The purpose of transferring the Claimant to Broadmoor was precisely to subject him to a more restrictive regime, as acknowledged by Dr Vandenabalee in his witness statement: “It is true that within conditions of high security [the Claimant] would be subjected to a more restrictive regime. This is, however, the very reason why he was referred there…”. If the level of restriction of a high security regime was not, in fact, necessary in the Claimant’s case he will have been “adversely affected by that decision” to transfer him, a consequence which means that fairness would generally require his being given the opportunity to make representations (see Doody v SSHD [1994] [1 AC 531, 560 referred to in R v Home Secretary ex parte Duggan [1994] [3 All ER 277, 284].

As to the statutory scheme, the fact that Broadmoor was not able to mandate the Claimant’s transfer and that ultimately it was Stockton Hall that had the power to transfer him did not mean that the power conferred on the Defendant to determine whether to admit a patient need not be exercised in a manner fair in all the circumstances. To exclude the obligation to act fairly would require clear statutory language. The Defendant accepted that in determining whether to admit a patient it was exercising public functions and must act properly as a public body. That submitted Mr Squires includes acting fairly. In any event the reality is that the effective decision as to whether the Claimant should be transferred lay not with Stockton Hall but with Broadmoor. If it decides that a patient is not suitable as occurred in December 2008 he will not be admitted. It is thus critical that Broadmoor should exercise its powers to admit fairly if the process as a whole is to be a fair one.

As to urgency, the Defendant accepted in oral argument that Ms Jolly’s letter of 19 August 2010 seeking “as a matter of urgency” documentation relevant to the proposed transfer was a request in contemplation of a potential challenge to the transfer. When Dr Sengupta’s report was finally provided to Ms Jolly on 20 September 2010 she was able to make detailed representations and ask for the matter to be reconsidered two days later. That was more than two weeks before the Claimant was transferred. There was thus no practical difficulty as a matter of timing in involving the Claimant and his solicitors in the decision making process and considering their representations.

As to the alternative remedies of making representations after the transfer, other than the Mental Health tribunal, the routes available to the Claimant to seek transfer out of high security have no formal processes and involve seeking to persuade various bodies that the patient should be transferred. In any event they did not cure the illegality. It is likely that persuading hospital staff immediately after a patient has been transferred that a mistake has been made to admit him will be more difficult than persuading the Admissions Panel, which rejects approximately half the referrals it receives on first application, not to admit him in the first place. Unless there is some overwhelming urgency fairness requires considering representations before rather than after transfer. As to an application to the Mental Health review Tribunal, it only had power to recommend a transfer not to authorise it.

The Secretary of State made no submissions on the question whether there was at common law a duty to hold an oral hearing before deciding whether to transfer a patient to a high security hospital or indeed on any aspect of the Claimant’s submissions as to the existence and scope of a common law duty of fairness.

No case was cited in which the question whether a decision whether a patient should be transferred from a medium security hospital to a high security hospital engages the common law duty to act fairly, and if so what the duty requires, has been either addressed or decided.

Two cases were cited which involved the transfer of patients from one high security hospital to another. The first was R v Secretary of State for the Home Department, Special Hospitals Services Authority, Department of Health and Social Security, ex parte Pickering, May 25 1990.

That was a decision of the Court of Appeal for which only a digest at [1990] COD 455 was available. The applicant was detained pursuant to a hospital order following his conviction for manslaughter. He applied unsuccessfully for leave to move for judicial review of a decision made pursuant to section 123 of the 1983 Act to transfer him from Ashworth to Broadmoor. He argued that the transfer to Broadmoor would have no therapeutic effect, that the decision was irrational and that he had a legitimate expectation that he would be consulted about the desirability of a transfer.

The Court of Appeal observed that the applicant had persisted in his view that he was not suffering from any psychopathic disorder but was fit to be released into the community. In refusing permission to move for judicial review it held that although attention was rightly paid to the wishes, where appropriate, of those detained under the 1983 Act, it had to be borne in mind that their rights and privileges were necessarily more circumscribed than those of the rest of the community. The choice of regime for a person who is restricted, and in particular, the identification of the most suitable place in which to detain him, were pre-eminently matters for the advice of doctors. Where decisions made in good faith were based on such advice, the Court would interfere only in exceptional circumstances. This was not such a case. There was no reasonable prospect that the applicant would succeed in showing at a full hearing that the exercise by the authority of the power to transfer him involved any need for consultation.

Mr Squires submitted that this decision does not assist the Defendant. First it preceded the development of the principles of common law fairness applied to prisoners in cases such as ex parte Doody and ex parte Duggan. Second it concerned a transfer between two high security hospitals. The basis on which the Claimant contends that common law fairness is engaged in this case is that transfer to high security from medium security meant a more restrictive regime and affected prospects of release, neither of which applied in ex parte Pickering.

Mr Hyam submitted that the change in location from one special hospital to another was likely to have an impact on the ability of family visiting and was thus arguably on the Claimant’s case an interference with respect for the applicant’s private and family life but that did not in a pre-human rights case prevent the Court of Appeal holding that as a matter of common law fairness no consultation with the patient was required. In fact there is no reference in the report of the decision to any likely impact on the ability of the applicant’s family to visit him and certainly no suggestion that he relied on such a likelihood as giving rise to his asserted right to be consulted.

In my judgment the decision of the Court of Appeal in ex parte Pickering is not binding authority for the proposition that a decision whether to transfer a patient from a medium security to a high security hospital does not engage or attract a common law duty of fairness. The Court of Appeal was considering a transfer pursuant to section 123 of the 1983 Act rather than, as in this case, pursuant to section 19 of the Act. I agree with Mr Hyam that there is in principle an analogy between the potentially adverse consequences in terms of greater restrictions in a high security regime following a transfer from medium security on the one hand and the possibility in some cases of adverse consequences in terms of greater difficulties in arranging family visits flowing from any transfer between hospitals including between high security hospitals on the other. However the latter do not involve greater restrictions on the patient and a transfer between high security hospitals such as that considered in ex parte Pickering does not involve a potential delay in ultimate release from detention such as is relied on by the Claimant in this case as giving rise to a duty to act fairly. Moreover even the potentially adverse consequence of restricted family visiting was not raised in ex parte Pickering so far as appears from the digest report. On its face therefore the Court of Appeal was not confronted with any argument based on adverse consequences and certainly not of the kind relied on in this case as giving rise to a duty to act fairly.

To the extent that ex parte Pickering assists the Defendant in this case it is in my judgment limited to the observations of the Court of Appeal that the choice of regime for a person who is restricted and in particular the identification of the most suitable place in which to detain him are pre-eminently matters for the advice of doctors. However even that proposition, qualified as it is by the factors to which I have referred, was subject to the proviso that in exceptional circumstances the Court would interfere where decisions made in good faith were based on such advice.

The second more recent case was that of R (T) v Chief Executive of Nottinghamshire NHS Trust [2006] EWHC 800 (Admin). That was an oral hearing of an application for permission to apply for judicial review of a hospital manager’s decision to transfer the Claimant from Rampton to Broadmoor under section 19 of the 1983 Act and Regulation 7 of the 1983 Regulations. One of the grounds on which the decision was challenged was that there would be procedural unfairness because the Claimant had not been allowed to make representations on the proposal before the decision was taken.

In refusing permission and holding that the claim was unarguable, Sullivan J, as he then was, rejected the challenge based on the submission that there would be procedural unfairness because the Claimant had not been allowed to make representations on the proposal before the decision was taken and that there was a failure to comply with the relevant code of practice. He held:

“It is understandable that those grounds might have been advanced on the state of the evidence as it was when the application was launched, but it is plain that the Claimant has had an opportunity to express his views as to whether or not he wishes to be moved. He has made it perfectly plain that he does not wish to be moved. There was a section 117 review in January of this year at which he chose not to be represented. I am quite satisfied that he has had an opportunity to make his position perfectly clear to the Trusts and that the Trust have taken proper consideration of his view, although ultimately they were not persuaded to accept it. Equally, it seems to me, there is no force in the criticism that there was a failure to comply with the code in any way.” [Paras 37, 38].

It is in my view implicit in Sullivan J’s reasons for rejecting the challenge based on procedural unfairness that he assumed that there was, or at least that it is arguable that there was, a common law duty on the Trust to afford the patient in that case an opportunity to express his views as to whether or not he wished to be moved and to give that view proper consideration. Although his remarks were obiter, since he found that there was no unfairness, in my judgement they provide some limited support for the proposition that even in a transfer between two high security hospitals and even where Article 8 is not engaged, there is a common law duty to act fairly. A question arose as to whether it would be more difficult for the Claimant’s mother to visit him in Broadmoor than in Rampton and Sullivan J held that it could not sensibly be said that the difficulties of travelling from London to Broadmoor are so great as to conceivably engage any Article of the European Convention on Human Rights. [Para 36]. Although there is no reference in the judgment to the citation of any authority, the case was decided against the background of all the authorities on the existence and ambit of the common law duty of fairness as applied to decisions affecting prisoners decided since ex parte Pickering.

At its lowest from the point of view of the Claimant, the decision in R (T) v Chief Executive of Nottinghamshire NHS Trusts is not in any event in my judgment of any assistance to the Defendant. Although the claim was held to be unarguable that was because the judge held that the Claimant had had an opportunity to make his position clear to the Trust and that the Trust took proper consideration of his views. Further, not only was it a case in which no question arose as to the potential for greater restrictions or delayed release from detention, but it was not a case about a transfer from a medium security hospital to a high security hospital, the potential adverse effects of which are far greater for a patient than those flowing from a transfer between high security hospitals.

In the absence of direct authority it is necessary to look to authorities in other related areas for statements of principles and points of similarity or distinction. The area in which this question has most frequently been addressed is that of decisions affecting prisoners, whether taken by the Secretary of State, prison governors, the Parole Board or officials considering the categorisation of prisoners in terms of risk or escape or risk in the event of escape.

In considering these authorities it is helpful to have in mind two questions which arise in this case: in order for a decision to engage a common law duty to act fairly is it a necessary condition that (a) the decision is taken pursuant to a power or duty conferred on the decision maker by statute and/or (b) that the decision will or may affect or determine the claimant’s common law, statutory or Convention rights?

In O’Reilly v Mackman [1983] 2 AC 237 at 239 Lord Diplock, in the context of his well known and authoritative exegesis of the principles governing the jurisdiction of the High Court to review decisions of statutory bodies held:

“The pre-1977 Order 53, like its predecessors, placed under considerable procedural disadvantage applicants who wished to challenge the lawfulness of a determination of a statutory tribunal or any other body of persons having legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals. It will be noted that I have broadened the much-cited description by Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171, 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies (which in 1924 then took the form of prerogative writs of mandamus, prohibitions, certiorari, and quo warranto) by excluding Atkin L.J.’s limitation of bodies of persons to whom the prerogative writs might issue, to those ‘having the duty to act judicially.’ For the next 40 years this phrase gave rise to many attempts which were quasi-judicial and those that were administrative only. But the relevance of arguments of this kind was destroyed by the decision of this House in Ridge v. Baldwin [1964] A.C. 40, where again the leading speech was given by Lord Reid. Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made. [573 G – 574 D]”.

Lord Diplock’s formulation did not answer either of these questions. As to the former, his statement of principle was limited to decisions made by persons or bodies of persons with authority conferred by legislation to make decisions (Although in the first sentence cited the formulation used was “ having legal authority to determine questions…”, the subsequent formulation referred to “authority conferred by legislation”.) As to the second question although the statement of principle did not in terms refer to decisions affecting persons’ legal rights, it was in my judgment so confined by his reference back to “decisions of the kind I have described” which appears to be a reference to the determination of “questions affecting the common law or statutory rights or obligations of other persons as individuals”. But it does not follow that he was excluding the possibility of any common law duty of fairness arising except where the decision affects a person’s common law, statutory or indeed Convention rights.

The classic statement of the principles governing the approach to identifying the requirements of the common law duty of fairness when it is engaged in a statutory context is to be found in the speech of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] [1 AC 531] at 560 D to G:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed ofthe gist of the case which he has to answer.”

Lord Mustill did not address the first question, the principles he identified being confined to what is required where a statute confers administrative power. The context of ex parte Doody was the exercise by the Secretary of State of a statutory power conferred on him by section 61 of the Criminal Justice Act 1967 to release on licence a person serving a sentence of imprisonment for life if recommended to so by the Parole Board and after consultation with the trial judge if available and the Lord Chief Justice of England. (That power was of course subsequently abolished by Parliament and replaced by a new system whereby the minimum period to be served is fixed by the trial judge.)

As to the second question Lord Mustill’s formulation did not include any reference to the existence of a legal right that would or might be affected by the exercise of the statutory power as a precondition for the presumption that the power will be exercised fairly. Rather in addressing the ambit of what fairness requires when the duty to act fairly exists he defined the class of persons to whom fairness will very often require that an opportunity to make representations should be given not by reference to whether the decision may adversely affect their legal rights but by reference to whether they maybe adversely affected by it. Ex parte Doody is therefore in my judgment authority for the proposition that the answer to my second question is no. It is not a necessary condition for the engagement of a common law duty to act fairly that the decision will or may affect or determine the Claimant’s common law, statutory or Convention rights.

Lord Mustill endorsed the recognition by the Secretary of State that the principles which he enunciated apply in their generality to prisoners although their particular situation and the particular statutory regime under which they are detained may require the principles to be applied in a special way. He also endorsed the acknowledgement by the respondents that it is not enough to persuade the Court that some procedure other than the one adopted by the decision maker would be better or more fair. They must show that the procedure is actually unfair. The Court must constantly bear in mind that it is to the decision maker, not the Court that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made. (560H – 561A).

As to what fairness required on the facts of the case in ex parte Doody, the House of Lords held that the Secretary of State is required to afford to a prisoner serving a mandatory life sentence the opportunity to submit in writing representations as to the period he should serve for the purposes of retribution and deterrence before he set the date of the first review of the prisoner’s sentence. Before giving the prisoner that opportunity the Secretary of State was required to inform him of the period recommended by the judiciary as the period he should serve for those purposes and of any other opinion expressed by the judiciary relevant to the Secretary of States’ decisions as to the appropriate period. The Secretary of State was also obliged to give reasons for departing from the period recommended by the judiciary.

Lord Mustill described the right to address to the Home Secretary reasons why the penal term should be fixed at a lower than a higher level as an obvious right which it was at that time accepted that the prisoner had. As to whether and to what extent a prisoner was entitled to prior disclosure of the substance of the matters on which the decision maker intended to proceed Lord Mustill stated:

“It has frequently been stated that the right to make representations is of little value unless the maker has knowledge in advance of the considerations which, unless effectively challenged, will or may lead to an adverse decision. The opinion of the Privy Council in Kanda v Government of Malaya [1962] [A.C. 322 at 337] is often quoted to this effect. This proposition of common sense will in many instances require an explicit disclosure of the substance of the matters on which the decision-maker intends to proceed. Whether such a duty exists, how far it goes and how it should be performed depends so entirely on the circumstances of the individual case that I prefer not to reason from any general proposition on the subject. Rather I would simply ask whether a life prisoner whose future depends vitally on the decision of the Home Secretary as to the penal element and who has a right to make representations upon it should know what factors the Home Secretary will take into account. In my view he does possess this right, for without it there is a risk that some supposed fact which he could controvert, some opinion which he could challenge, some policy which he could argue against, might wrongly go unanswered.” [563 F –H].

It is important to note that the context in which the opinion of the Privy Council was expressed in Kanda was disciplinary proceedings against a police inspector who was charged with having given false evidence at a criminal trial, found guilty and dismissed. The adjudicating officer had been supplied with the report of a board of inquiry which included a severe condemnation of the inspector before he sat to enquire in to the charge. He read it and had full knowledge of its contents whereas the inspector did not have it and never had an opportunity of dealing with it, having only received it on the fourth day of the hearing.

Delivering the judgment of the Privy Council in Kanda Lord Denning said:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them…. It follows of course that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”

The source of the right postulated by Lord Denning to know what evidence has been given and what statements have been made and then to be given a fair opportunity to correct of contradict them was the right of an accused man to be heard. The existence of such a right in criminal proceedings or disciplinary proceedings carrying a penalty is well established. In ex parte Doody it was accepted by the Secretary of State and held by the House of Lords that it exists on the part of a prisoner whose penal tariff is liable to be determined by the Home Secretary. As we shall see it has been held not to exist on the part of a prisoner before an order is made for his temporary removal from association with other prisoners under prison rules for purposes other than punishment (see R v Deputy Governor of Parkhurst ex parte Hague [1992] 1 AC 58, followed in R v Secretary of State for Justice ex parte King [2012] EWCA Civ 376).

However, it is instructive that when considering whether the duty of fairness required the Home Secretary to inform the prisoner of his reasons for departing from the judicial view of his tariff if he did so, Lord Mustill in ex parte Doody doubted the wisdom of discussing the problem in what he described as the contemporary vocabulary of “prisoners rights” given that as a result of his own act the position of the prisoner is so forcibly distanced from that of the ordinary citizen.

“I prefer simply to assert that within the inevitable constraints imposed by the statutory framework, the general shape of the administrative regime which ministers have lawfully built around it, and the imperatives of the public interest, the Secretary of State ought to implement the scheme as fairly as he can. The giving of reasons may be inconvenient, but I can see no ground at all why it should be against public interest: indeed rather the reverse. This being so, I would ask simply: is refusal to give reasons fair? I would answer without hesitation that it is not. As soon as the jury returns its verdicts the offender knows that he will be locked up for a very long time. For just how long immediately becomes the most important thing in the prisoner’s life. …Where a defendant is convicted of, say, several armed robberies he knows that he faces a stiff sentence: he can be advised by reference to a public tariff of the range of sentences he must expect; he hears counsel address the judge on the relationship between his offences and the tariff; he will often hear the judge give an indication during the exchanges with counsel how his mind is working; and when sentence is pronounced he will always be told the reasons for it. So also when a discretionary life sentence is imposed, coupled with an order under section 34. Contrast this with the position of the prisoner sentenced for murder. He never sees the Home Secretary; he has no dialogue with him; he cannot fathom how his mind is working. There is no true tariff, or at least no tariff exposed to public view which might give the prisoner an idea of what to expect. The announcement of his first review date arrives out of thin air, wholly without an explanation. A distant oracle has spoken, and that is that. … I therefore simply ask, is it fair that the mandatory life prisoner should be wholly deprived of the information which all other prisoners receive as a matter of course. I am clearly of the opinion that it is not.” [564F -565F].”

This case shares with the context in ex parte Doody the fact that the Claimant’s future depended vitally on the decision in question, in his case the decision whether he should be transferred to conditions of high security. Whether that factor is sufficient on its own or in combination with the other circumstances of the case to give rise to a right to make representations or a duty on the part of the relevant decision makers to afford him such an opportunity is the first and critical question for decision. That must turn on a consideration of all the circumstances of the case including the statutory context, the purpose for which the power to transfer from medium to high security hospitals is conferred, the nature of the decision and what was involved in making it, questions of urgency and the protection of others as well as the potential adverse consequences for the Claimant.

The Defendant would distinguish ex parte Doody on the basis that the very nature of the decision to be taken by the Home Secretary had a direct effect on the length of the prisoner’s detention and deprivation of liberty. The Claimant submits that in practice the evidence shows that a decision to transfer him to Broadmoor was likely to delay the moment when he will ultimately be released from detention of any sort under the 1983 Act and will also in the meanwhile certainly lead to some more stringent conditions and probably lead to others. In those two respects the Claimant submits that there is a clear parallel with a decision whether to allocate or maintain a prisoner’s Category A status, which has been held to engage a duty to act fairly, even though the effect of the decision on the length of the time that will elapse before the prisoner is released is less direct than that of the fixing of the minimum period to be served in ex parte Doody.

Ex parte Doody was applied by the Divisional Court in R v Secretary of Sate for the Home Department ex parte Duggan [1994] [3 All ER 277]. In that case the Divisional Court held that fairness required that Category A prisoners should, on the first and subsequent annual reviews of their categorisation, (but not on first being detained in prison) subject to public interest immunity, be shown the gist of reports submitted to the body responsible for deciding whether to maintain or change their categorisation in order to give them the opportunity for comment and that reasons should be given subsequently.

Central to the reasoning of the decision was the conclusion that so long as a prisoner remains in Category A “his prospects for release on parole are, in practice, nil” (per Rose LJ at 288). Indeed that was one of the two reasons why the Court distinguished the position of subsequent reviews and initial categorisation, in respect of which Rose LJ saw no reason for procedures on admission to prison to be subject to the same requirements as those which are appropriate later.

“Those placed in Category A will almost always, if not inevitably, be serving substantial sentences, so that the impact of initial categorisation is unlikely materially to affect their prospects of release. I see nothing unfair in that initial categorisation being undertaken without the substance of reports being revealed or reasons being given.” (ibid).

By contrast he held that on the first and subsequent annual reviews fairness required that the gist of the report be revealed, in order to give the opportunity for comment, and that reasons be given subsequently (ibid). The other reason why he held that there was no such requirement on first admission to prison was that speedy categorisation of those who might be dangerous is essential in the public interest.

Although it did not form an express part of his reasoning, Rose LJ drew attention to the fact that it was common ground that a prisoner in Category A endures a more restrictive regime and higher conditions of security than those in other categories. Movement within prison and communication with the outside world are closely monitored, strip searches are routine, visiting is likely to be more difficult for reasons of geography, in that there are comparatively few high security prisons, and educational and employment opportunities are limited. He added

“and as, by definition, a Category A prisoner is regarded as highly dangerous if at large, he cannot properly be regarded by the Parole Board as suitable for release on licence.” [p.280].

The Claimant in this case submits that there is a direct parallel in both respects: the presence of a more restrictive regime in a high security hospital and the effect of the decision on the date of ultimate release.

As to the latter Rose LJ held:

“There is, pace Sir Louis Blom-Cooper QC in R v Lambeth BC ex parte Walters [1993] [Times, 6 October], no authority for the proposition that there is a general duty to give reasons for administrative decisions, and there is the high authority of Lord Mustill to the contrary [1993] [3 All ER 92] at 111 [in Doody] …but to my mind the authorities show an ever-increasing variety of situations where, depending on the nature of the decision and the process by which it is reached, fairness requires that reasons be given. … As Lord Oliver said in Leech v Parkhurst Prison deputy Governor [1988] [1 All ER 485 at 509, [988 AC 533 and 578];

“…the function of adjudicating upon charges of infractions of prison discipline…is a public function which affects the liberty and to a degree the status of a person affected by it. As such it must, it seems to me, be subject to the general common law principle which imposes a duty of procedural fairness when a public authority makes a decision not of legislative nature affecting the rights, privileges and interests of an individual.”

In my judgment those words apply a fortiori where what is sought to be challenged is not merely a disciplinary decision of limited significance but a decision which has a direct impact on the date of a prisoner’s ultimate release.

I am unable to accept that there is any material practical distinction between a decision of the Parole Board in relation to the release of the life sentence prisoner and the decision of the governor that a “lifer” should be Category A. There are, of course, the distinctions, procedurally and otherwise, to which Mr Richards drew attention. But both decisions, as it seems to me, bear directly upon a prisoner’s prospects of release. In this respect prisoners in Category A are in a different position from prisoners in Category B, C or D. It is wholly improbable that the Parole Board would recommend the release of a Category A prisoner. Indeed, Mr Richards accepted that there is no known incidence of this occurring, although there have been three incidents of the Parole Board inviting a reconsideration of the categorisation of a Category A prisoner who had applied for parole. In any event it is inconceivable that the Secretary of State would sanction the release of a Category A prisoner, even if the Parole Board had so recommended.

So long as the prisoner remains in Category A, his prospects for release on parole are, in practice, nil. The inescapable conclusion is that which I have indicated, namely a decision to classify or continue the classification of a prisoner as Category A has a direct impact on the liberty of the subject.” [288].

Although Rose LJ held that a categorisation decision has a direct impact on the date of a prisoner’s ultimate release, the mechanism by which the impact is felt, unlike in ex parte Doody, was not explicit in the sense of imposing a time limit before which the prisoner may not be released but, as Rose LJ explained, implicit in the sense that in practice it is inconceivable that the Secretary of State would sanction the release of a Category A prisoner, the definition of Category A prisoners being those “whose escape would be highly dangerous to the public or the police or to the security of the State.” Again the Claimant submits that the evidence to which I shall shortly refer shows that the position of a patient transferred to a high security hospital is not dissimilar in that in practice such a transfer is likely to delay the date of the patient’s ultimate release from detention under the 1983 Act.

I draw attention to the fact that, as explained by Rose LJ, there was a statutory basis for the security categorisation of prisoners. It was contained in section 47 (1) of the Prison Act 1952, which empowered the Secretary of State to make rules for, among other things, “classification…discipline and control” of prisoners. Rule 3 of the Prison Rules 1964, SI 1964/388, provided for classification of prisoners “in accordance with any directions of the Secretary of State, having regard to their age, temperament, and record and with a view to maintaining good order.”

Although, as is submitted by the Claimant to be the case with transfer to a high security hospital, the decision to place a prisoner in Category A does not have a penal purpose but is designed to reduce the risk of escape of prisoners whose escape would be highly dangerous to the public, the court nonetheless held that because an adverse decision would bear directly on a prisoner’s prospects of release fairness required the gist of reports to be revealed. Again the Claimant relies on this parallel.

As to my second question, Rose LJ recorded that Category A prisoners were permitted to make representations which would be considered by the relevant decision making body, either the Category A section or on reference to it the Category A Committee. Although he referred to Prison Rules 7 and 8 which provided for prisoners to be given information about and as to the proper method for making requests or complaints to the governor or board of visitors, it is not clear whether that or some other provision was the source of the right to make representations to which he referred. Counsel in ex parte Duggan cited a judgment of Rose LJ in R v Secretary of State for the Home Department ex parte Creamer and Scholey (21 October 1992, unreported) in which, being then bound by Payne v Lord Harris of Greenwich [1981] 2 All ER 842 he stated:

“If the matter were free from authority, I would, as I have already indicated, have no hesitation in concluding that, in 1992, subject to necessary exceptions arising, for example, from public interest immunity or where disclosure of material in a medical report might damage the patient, mandatory life prisoners, like discretionary life prisoner, should be entitled to see the material before the Board on review, on recall and on post recall. A prisoner’s right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss are, or should be, anathema in a civilised, democratic society.” (285)

The source of the right to make representations which Rose LJ assumed existed in that case was not identified in that passage.

More generally the factor which appears to have led Rose LJ to conclude that the general common law principle which imposes a duty of procedural fairness was engaged was the fact that the categorisation decision had a direct impact on the date of a prisoner’s ultimate release. That was the common factor in the passage from Lord Oliver’s speech in Leech cited above:

“A public function which affects the liberty and to a degree the status of the persons affected”.

Moreover unlike Leech the categorisation decision was not a “function of adjudicating upon charges of infractions of prison discipline.” To that extent in my judgment Rose LJ’s judgment in ex parte Duggan supports the Claimant’s submissions, in so far as it established that a duty of fairness is not confined to a context of adjudicating on charges. In the passage in Lord Oliver’s speech in Leech immediately before that cited by Rose LJ, Lord Oliver rejected the submission that decisions of prison governors were not subject to judicial review because they were part of a self contained administrative system into which the court should not trespass. He rejected that submission on the ground that the prison governor is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties. Although many of those duties were of a purely administrative nature and involved no adjudicatory function at all, the function of adjudicating on charges of infractions of prison discipline had the consequences referred to in the passage cited by Rose LJ.

The practice of ordinarily showing a prisoner the gist of the Category A reports summarising their contents which was, as Munby J said in R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin) at paragraph 6 in effect endorsed by the Divisional Court in ex parte Duggan, was explicitly approved by the Court of Appeal in R v Secretary of State for the Home Department ex parte McAvoy [1998] [1 WLR 790]. I refer to what the Court of Appeal in McAvoy said as to the application of the duty of fairness below. For present purposes I draw attention to the following dictum of Lord Woolf MR:

“For my part, I accept that it is desirable, when something has the impact which being placed in Category A has on a prisoner, that the approach should be to ensure, so far as practical, that fairness is achieved.” [789 H].

The factor which Lord Woolf MR there considered to point in principle to the existence of a duty to act fairly was the nature of the adverse consequences on the person likely to be affected by the decision, rather than, for example the interference by the decision with a person’s pre existing legal right or the fact that the decision is made in exercise of an express statutory power. The two obvious impacts on a prisoner of being placed in Category A are the increased stringency of the conditions to which they become subject while placed in Category A and (save in the very rare case of whole life tariff prisoners) the likely delay in their ultimate release. These are of course the two adverse consequences prayed in aid by the Claimant in this case as likely to flow from a decision to transfer him from a medium to a high security hospital.

In R (Ali) v Director of High Security [2009] EWHC 1732 (Admin) HHJ Pelling QC held that the common law duty of fairness is engaged by a decision as to which Escape Risk Classification (“ERC”) a category A prisoner should be given. As described in his judgment ERC is a non-statutory, internal administrative procedure applied to all Category A prisoners whether convicted or un-convicted. The only internal guidance concerning ERC is that contained in PSO 101010:

“Category A prisoners: review of security category (“RSC”), which defines standard, high and exceptional escape risk. Most category A prisoners are classified as standard escape risk. They are not considered to have the determination and skill to overcome the range of security measures which apply to the custody and movement of category A prisoners. By contrast high escape risk prisoners have a history and background which suggest they have the ability and determination to overcome the range of security measures which apply to the custody of standard risk category A prisoners. There may be current information to suggest that they have associates or resources which could be used to plan and carry out an assisted escape attempt. If there is information that the prisoners or associates have access to firearms or explosives, and have been willing to use them in committing crime or avoiding capture, high risk is the expected category.

No guidance is given as to how ERC is to be carried out. There is substantial guidance given as to how category A reviews are to be carried out which HHJ Pelling QC said has clearly been designed to give effect, in the most administratively convenient manner possible, to the previous decisions of the court relating to those reviews, some of which are expressly identified by name in the text of the guidance. The only guidance relevant to the claim in Ali was in these terms: “Decisions on escape classification based on an assessment of a prisoner’s escape potential ….. although the two matters, security category and escape risk classification are connected and may overlap (in the sense that, for example, circumstances such as association with criminal gangs may be relevant to both) they are distinct and considered separately.”

The Judge commented that that is hardly surprising given that Category A is concerned with the risk that a prisoner poses if he or she were to escape whereas ERC is concerned with the risk of escape that the prisoner poses.

The Claimant, a Category A prisoner sentenced to a mandatory life sentence for murder with a minimum term of 30 years, submitted that a procedurally fair process in relation to allocation or review of ERC should include disclosure to the prisoner ahead of the determination of any material not covered by the exceptions set out in section 29 of the Data Protection Act 1998, an opportunity to make representations before the decision is made and the delivery of the decision with sufficient reasons to enable it to be understood and a challenge made to it if necessary. The process actually adopted, which involved none of those elements, was said to be unfair applying common law principles as well as contrary to the Data Protection Act 1998. In consequence of those matters or in any event it was submitted that the Claimant’s Article 8 rights had been disproportionately interfered with.

The Defendant submitted that the issue of allocation or review of ERC was essentially one of internal prison management, was not governed by statute and thus was not open to criticism on the grounds identified. Even if the decision did engage common law rules of fairness it was submitted that what those rules require depends on the circumstances and that nothing further was required by way of reasons than the fact that the claimant was serving a life sentence for murder in year 3 of the 30 year tariff for an offence which involved the use of a firearm and was gang related and where in May 2007 there had been intelligence that the claimant was “actively endeavouring to escape from custody”. It was also submitted that the material considered when making a decision to classify or continue the classification of a prisoner as a High or Exceptional Escape Risk is likely to be so sensitive that it would attract exception from disclosure under section 29(1) of the 1989 Act and ought not to be required to be disclosed even in gist form. It was submitted that it has long been recognised that the issues arising in relation to categorisation in relation to category A prisoner give rise to special issues directly impacting on the liberty of the subject and that the case law as to fairness in that context could and should not be applied in the current context. The position in the current context was submitted to be similar to that which applied to decisions to transfer between categories B to D, and to which it was clearly established by R v SSHDex parte Perries (1997) Unreported 25 July that the Category A case law principles were of no application.

The Claimant submitted that sub-categorisation within Category A as a high escape risk was of significance to him and others in his position for two reasons. First it was in practice inconceivable that a “high risk” prisoner could be progressively de-categorised which would in appropriate circumstances have a direct effect on the liberty of a prisoner because without de-categorisation there can in practice be no question of parole, which in practice will not be considered in respect of a category A prisoner – see the analysis of Rose LJ in ex parte Duggan 288. Second if so categorised, the result is that the regime to which a prisoner is subjected is significantly more intrusive than would be the case with a category A prisoner with a standard escape risk categorisation.

On the first point there was evidence from one of the governors of HMP Full Sutton that the function of that prison is to:

“hold in conditions of high security, some of the most difficult and dangerous criminals in the country”… The main differences between the “HRA” and “STDA” require HRA prisoners to move cells every 28 days and STDA every three years. HRA will be subject to cell search every 14 days and STDA cell search every 28 days. HRA prisoners are also strip searched both before and after visits and STDA prisoners only strip searched after visits, not before. HRA prisoners are also subject to hourly observations including at night whereas STDA prisoners are observed 10 times over the course of every 24 hour period (5 times during the night).”

The Judge said that there were also differences in the way such prisoners were moved about the prison and that visits to high risk prisoners were more closely observed than would be the case for a prisoner classified as a standard escape risk. There was a dispute as to what was meant by observation at night in respect of which the Judge proceeded on the basis that there would be occasions when a high risk prisoner is woken more than once during the course of the night as a consequence of having to make sure that the required observation is effective.

As to the second issue in the absence of evidence by the Defendant the Judge also proceeded on the basis that the Claimant was correct in his assertion that in practice it is inconceivable that a high risk prisoner could be progressively de-categorised. He concluded that that proposition flowed logically from the distinction between the definitions of Category A and Category B prisoners in chapter 1 of PSO 0900. The former were defined as “prisoners whose escape would be highly dangerous to the public… no matter how unlikely that escape might be, and for whom the aim must be to make the escape impossible”. The latter were defined as “prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult”.

HHJ Pelling QC held that the suggestion that an ERC decision is not amenable to the common law rules of fairness is unsustainable. First he held that the underlying rationale of the decision of Jowitt J in R v SSHDex parte Perries does not apply to ERC. That case decided that the Category A authorities were of no application to decisions concerning re-classification between Categories B-D because those authorities depended upon the conclusion that a decision to retain a prisoner within category A was a decision which prevented the prisoner being granted parole and thus had a direct effect on the liberty of the subject. By contrast Jowitt J concluded that there was no evidence that a Category D prisoner had a better chance of being granted parole than a Category C prisoner and that whilst that fact might have some influence on the decision it was unlikely to be significant and certainly nowhere near as significant as was the position in relation to category A categorisation. There was no other basis of disadvantage argued in that case other than the alleged effect on parole.

HHJ Pelling QC concluded that Jowitt J’s analysis was of no significance in addressing the issues he had to decide because in his case there were two distinct reasons advanced as to why the decision concerning ERC has a direct and deleterious effect on the life of the prisoner – the parole issue and a markedly more intrusive regime that applies to prisoners who are given a high risk ERC.

The Judge referred to the decision of Blake J in R (Allen) v SSJ and Governor of HMP Belmarsh [2008] EWHC 3298 (Admin) which so far as he was aware was the only case in which the ERC issue had been considered in relation to the fairness principles in a reasoned judgment. That case he held was plainly distinguishable from the case before him because it was concerned with an ERC classification applied to a prisoner held on remand while in the course of his trial. Blake J stated at paragraph 19 of his judgment:

“This is not a case of the future treatment in the prison estate of a convicted prisoner whose classification at a particular period in time of course is a matter of importance to him or her and has some impact upon his prospects and timing of any application for parole.”

HHJ Pelling QC stated that the case before him was concerned with the type of case that Blake J held was not before him. In his judgment Blake J was entirely correct to conclude that the position was different in relation to a convicted prisoner because of the effect a high or an exceptional escape risk assessment has on that prisoner’s circumstances while in prison as well as his prospects of being granted parole – see in particular paragraph 9 of his judgment where largely similar points to those relied on by the claimant in this case were relied on. He quoted Blake J at paragraph 38 of his judgment:

“There is a legitimate basis in an appropriate case at an appropriate time for the supervision of the decision making process and its impact upon a claimant.”

HHJ Pelling QC concluded:

“Aside from the narrow points so far considered, in my judgment the attempt to characterise the decision as merely an internal prison management decision misses the point. In my judgment the common law duty of procedural fairness is engaged where the function being carried out affects the liberty and/or status of the persons affected by it – see R v SSHD ex parte Duggan [1994] 3 All ER 277 at 287G – 288A. In my judgment it is clearly the case that an ERC decision falls squarely within this definition of applicability. It is true to say that the analysis of Rose LJ in Duggan was concerned with the question of category A categorisation and it is also true to say that what the court regarded as the minimum required to achieve fairness in that case was focussed by the direct impact such decisions had on the liberty of the subject. However it does not follow that the common law duty of fairness has no further application in any prison related issue that does not engage liberty in the same stark way.” (Para 18).

In my judgment, HHJ Pelling QC’s judgment is significant as regards the basis on which he held that the decision in that case engaged the common law duty to act fairly. First in holding that the attempt to characterise the decision as merely an internal prison management decision missed the point, he appeared to hold that even though the decision as to which definition of risk a prisoner should be allocated is not governed by statute, it still attracts a common law duty to act fairly. Indeed that holding was part of the ratio decidendi of his decision given that it involved rejecting the Defendant’s submission that because the ERC decision was not governed by statute it was not open to challenge for unfairness. Second he appears to have based his decision not only on the effect of the prisoner’s prospects for parole but also on the more stringent conditions to which he is subject while detained with a high risk allocation. In that he drew support from Blake J’s conclusion that the position of a convicted prisoner was different from that of a prisoner on remand in part because of the effect a higher exceptional escape risk assessment had on a prisoner’s circumstances while in prison.

Third his conclusion that a common law duty of procedural fairness is engaged “wherever the function being carried out affects the liberty and/or status of the persons affected by it”, although attributed to the decision of Rose LJ in ex parte Duggan, arguably goes further and wider than the ratio in that case. He stated that although what was regarded as the minimum required to achieve fairness in ex parte Duggan was focussed by the direct impact such decisions had on the liberty of the subject it did not follow that the common law duty of fairness has no application in any prison related issue that does not engage liberty in the same stark way. (para 18). In my respectful opinion HHJ Pelling QC was correct to reach these conclusions. Finally his brief remarks on Article 8 are of interest in the present context in that he did not base his general conclusions as to the circumstances in which the common law duty of fairness is engaged on the presence or absence of a legal right affected by the impugned decision.

As to what fairness requires, applying the principles set out by Lord Mustill in ex parte Doody to a decision to impose or continue either a High or Exceptional ERC, HH Judge Pelling QC reminded himself of Lord Bridge’s statement in Lloyd v McMahon [1987] 1 AC 625 that the fairness duty will only supply “…so much and no more… by way of procedural safeguards as will ensure the attainment of fairness.” Because the effect of a common law duty on the decision making which he had to consider had been considered by the High Court on only one previous occasion where a reasoned judgment had been given he said that a cautious step by step approach was required to that question.

He concluded that it was not arguable that fairness required that the Claimant be given a prior opportunity to answer the case to be put before the Defendant prior to him taking an ERC decision either initially or at a routine review.

He identified two different situations in which the issue was likely to arise. The first was where the Defendant might have to act quickly on intelligence provided at very short notice and in circumstances where it may have been supplied from second or third hand sources in circumstances of great personal risk or where for other reasons a high degree of confidentiality must be preserved. He unhesitatingly adopted what Blake J said in Allen at paragraph 19:

“It is in the very nature of risk assessment that one may need to act promptly. Indeed, if one is not to give rise to the very risk that the regime is designed to avert, it would be wrong to rule that there is an arguable case of a minimum requirement of fairness to notify the person before the measures are put in place of the basis on which it is assessed that there is a risk of escape or exceptional escape risk in advance. The very nature of risk requires that those who have the obligations to prevent untoward events and to make assessments of risk have to have the freedom to move in the way that they conclude is best having regard to the nature of risk, the consequences and such like.”

HHJ Pelling QC said that it might be argued that a difference of approach is justified depending on whether the decision is one that is driven by new information suggesting some imminent development or change in risk or one that is to be taken following a routine six monthly review. However that was not argued before him and in any event he saw no necessity to distinguish between the two situations. (Paragraphs 21, 22 and 26).

However he held that a prisoner in the position of the claimant in that case (1) must be made aware of the decision that has been taken, (2) must be told the reasons for it in sufficient detail to enable him to decide whether a worthwhile challenge to the decision can be made (together, arguably, with the material relied on in reaching that decision to the extent that disclosure of it is not exempted by operation of section 29 (1) of the Data Protection Act 1998) and (3) must be given an opportunity reasonably soon after the decision has been taken to make representations with a view to it being modified. As long as those things are done the person concerned cannot claim seriously to have been treated unfairly. He said that, as Blake J observed in Allen in paragraph 20 of his judgment, the fact that a challenge to an assessment will have to be retrospective does not mean that it is appropriate never to explain a decision or to give reasons for it:

“There will be some, perhaps many ERC decisions that are not capable of serious challenge. However that can only be clearly shown to be so if sufficiently detailed reasons are given. In my judgment, it is for that reason that the minimum requirement of fairness in this context is that reasons must be given for any decision which involves classifying a Category A prisoner as either a High or Exceptional Escape risk or maintaining such a classification following a review. The reasons have to be sufficiently detailed to enable the prisoner concerned to decide whether a worthwhile challenge to the decision can be made. This is so because the failure to give reasons or to give reasons that are any less detailed prevents the person concerned from understanding why a decision has been reached or challenging it. It is the essential first stage to enabling someone who is the victim of factual error or fabrication or irrationality to correct its effect” (Para 23).

As to disclosure of material HHJ Pelling QC held that no question of the prior disclosure of material to be considered by the decision taker arises in an ERC case. That followed necessarily from his conclusion that fairness did not require a prior opportunity to answer the case to be put before the decision maker before the decision was taken.

There was no dispute in that case that the Claimant would be entitled to be given information to which he was entitled under the Data Protection Act 1998 if he asked for it. The Defendant’s case was that all material considered for the purpose of making an ERC decision is by its very nature material to which the exception contained in section 29 (1) of the Act applied and was thus not discloseable. Section 29 (1) provides that personal data processed for (a) the prevention or detection of crime or (b) the apprehension or prosecution of offenders are exempt in any case to the extent to which the application of those provisions to the data would be likely to prejudice any matters mentioned in the subsection.

The judge cited Munby J in R (Lord) v SSHD [2003] EWHC 2073 (Admin) who held that the words “in any case” in section 29 (c) are to be read as meaning “in any particular case” so that it is for the data controller, if he wishes to rely upon the exemption in section 29 (1), to show that one of the statutory objects is likely to be prejudiced in the particular case in which the question arises. Munby J emphasised that he was not saying that every category A prisoner will in every case be entitled to see the full contents of his Category A reports. There will be cases – for all he knew there may be many cases – in which the Secretary of State will be able to rely on Section 29 (1) as justifying less than complete disclosure. All he was saying was that the Secretary of State’s present policy of blanket non-disclosure could not be justified under Section 29 (1). What that section requires is a more selective and targeted approach to nondisclosure, based on the circumstances of the particular case (see paras 94 and 126 of Munby J’s judgment.)

As to disclosure after the decision is taken, HHJ Pelling QC was not satisfied that fairness requires that in every case the Defendant should be required to carry out a review of the material considered for the purpose of informing a prisoner what has been relied on that can be released (if anything). In many cases the decision together with reasons for it (if given in the sort of detail he mentioned) would be sufficient to show that a request for reconsideration would be pointless. And thus it would not be appropriate to require that in every case the Defendant or his staff should have to review all the material considered in order to decide whether Section 29 (1) applies to it or not. In his judgment the need for such an exercise could only arguably arise if a request is made for such material after a reasoned ERC decision has been delivered to the prisoner concerned. The need to consider whether fairness required such an exercise to be undertaken did not arise in that case and he preferred to express no concluded view which he considered should await a case with appropriate facts. (Paragraph 26).

As to relief HH Judge Pelling QC declined to quash the ERC decision made. Reasons for it had been given, albeit only after the commencement of proceedings, and it was not argued that they were flawed. In any event it was clear that even if the decision under attack were quashed the Defendant would reach the same decision, as was evidenced by the fact that at least two subsequent decisions to similar effect had been made since the decision the subject of the challenge. Further and more fundamentally given his view that fairness requires in the first instance only a decision supported by reasons in sufficient detail to enable the prisoner concerned to decide whether a worthwhile challenge to the decision can be made, it would in his opinion have been wrong to quash the decision itself because to do so might result in the occurrence of the very problem that the ERC process is designed to eliminate. He did however consider that it was unlawful for the Defendant to have failed to give reasons for the decision originally and in the interests of avoiding similar difficulties in the future considered it appropriate to grant a declaration reflecting the substance of his judgment.

In Allen, to which HHJ Pelling QC referred in Ali the Claimant was refused permission to seek judicial review of decisions to classify him as an exceptional escape risk (“EER”). The Claimant was a remand prisoner being tried for an alleged offence of armed robbery at the Central Criminal Court who had been classified as Category A. One of the rejected grounds of challenge was that he had been given no opportunity to challenge the factual basis of the assessment which led to his reclassification as EER.

Blake J described the system of classification as one which is not governed by statute and is essentially a matter of prison management. He said that it is obvious that Category A prisoners are prisoners whose escape would be of serious concern to the public and that prisons would undoubtedly seek to manage their resources by focusing their attention upon those who they have greatest concerns about. (Para 4).

He held:

“In respect of the complaint of opportunity to disabuse, in my judgment it is premature and wrong for this challenge to be brought and for permission to be granted. This is not a case of the future treatment in the prison estate of a convicted prisoner, whose classification at a particular period of time of course is a matter of importance to him or her and has some impact upon his prospects and timing of any application for parole. We are a long way from that class of case, where the courts have set down some minimum requirements of fairness that ought to operate in such a context. That is not to conclude that there is no scope for minimum fairness in an EER assessment that has the intrusive implications that the court has sought to summarise a little earlier in this judgment.” (Paragraph 19).

(The words emphasised were omitted from HHJ Pelling QC’s citation of his judgment in Ali). In a passage of his judgment also cited by HHJ Pelling QC in Ali Blake J then explained why he considered that there was no arguable case of a minimum requirement of fairness to notify the prisoner before the measures are put in place of the basis on which it is assessed that there is a risk of escape or exceptional escape risk. He concluded that by definition challenges to those assessments would almost certainly have to be retrospective to some degree. That was not to say that it is appropriate never to explain a decision or to give reasons for it or even to give disclosure for it if a request is made, but that would be a request after the event. (Paragraph 20).

Blake J stated that the authorities to which he had been referred, notably ex parte Doody, do not indicate some more intensive minimum standard of fairness in the context with which he was concerned. “On the contrary the Court has always been conscious of the potential difficulties of combining minimums standards of fairness as an absolute content (sic) against issues of risk. The Court would observe that in such cases as Council of Civil Service Unions v Minister for the Civil Service [1985 AC 374] their Lordships in the House of Lords concluded that a breach of a legitimate expectation of consultation was appropriate in order to change matters before the risk that the change was designed to avoid came about.” (Paragraph 21).

Blake J concluded that in so far as the complaint was that the decision had been taken without a prior opportunity to disabuse there was no arguable ground that that prior opportunity was required as a matter of minimum fairness. (Paragraph 22). However he went on “unhesitatingly” to conclude that as to the future the Defendants should permit the Claimant and his lawyers if so advised to make all representations, supported by such evidence, submissions and anything else the Claimant thought appropriate, to the Defendants addressing the grounds and issues which had been disclosed so that they could fully appraise whether the assessments made were appropriate to continue to be made. “This is not the Court washing its hands of what happens in prisons. It is not the Court expressing to the Defendant that it has no jurisdiction or no interest in how these decisions are taken when applied in the future. There is a legitimate basis in an appropriate case at an appropriate time for supervision of the decision-making process and its impact upon a Claimant.” (Paragraphs 23 and 38).

Blake J gave short shrift to the submission that there is a human right to a trial of the classification within Category A of a prisoner’s security rating. He held that that does not relate to a civil right or obligation which is the kind of right protected by Article 6 (1) of the ECHR. That submission got the Claimant nowhere in his judgment. Common law fairness in respect of an adverse administrative decision was his best basis of claim. (paragraph 31)].

Abdullah and Others v Secretary of State for Justice [2011] EWHC 3212 (Admin) was another case concerning the escape risk classification of Category A prisoners. In his judgment Elias LJ, sitting in the Divisional Court, stated that:

“…the imposition of a higher risk category is a very significant matter and it is well established that before a final decision is taken about the appropriate category, the prisoner should have an opportunity to make representations so as to seek to influence the decisions.” [Paragraph 10].

Elias LJ did not identify the authorities which established that proposition, but it is a proposition which is necessarily based on the premise that the decision as to which risk category a particular prisoner should be placed in attracts the common law duty of fairness, and that one of the requirements of that duty in the context of such a decision is that the prisoner should be afforded an opportunity of making representations before a final decision is taken so as to seek to influence it. As regards the existence of a common law duty to act fairly in this context it echoes the dicta of HHJ Pelling QC in Ali and Blake J in Allen. As regards the positing of a right to make representations before a final decision is made it goes beyond them. It is also significant in that, as described in Ali, the classification process is not made pursuant to a specific express statutory power.

There are two important cases dealing with the question whether there is a duty to act fairly and if so what that duty requires in the context of decisions to segregate prisoners. In R v Deputy Governor of Parkerex parte Hague [1992 1 AC 58] the Court of Appeal held that fairness did not require that a prisoner be given the right to be heard before a decision affecting him was made under Prison Rule 43 of the Prison Rules 1964 which, as amended by the Prison (Amendment) Rules 1971, were made pursuant to section 47 of the Prison Act 1954.

Rule 43 empowered the prison governor to arrange for a prisoner’s removal from association where it appeared desirable for the maintenance of good order or discipline or in his own interests that he should not associate with other prisoners either generally or for particular purposes. It did not permit a prisoner to be removed for more than 24 hours without the authority of a member of the board of visitors or of the Secretary of State, which could be given for a period not exceeding one month and thereafter could be renewed from month to month.

The Court of Appeal (on a point not considered when the case went on appeal to the House of Lords) upheld a decision of the Divisional Court that a prisoner did not have a right to make representations before he was made subject to Rule 43. The applicant prisoner did not contend for a right to be heard before the governor made his initial decision to invoke Rule 43 for 24 hours. On his behalf Mr Sedley conceded that such a decision would usually be a matter of urgency and that to seek the views of the prisoner who was, ex hypothesi considered troublesome and a threat to good order and discipline, was unrealistic. Taylor L.J. held:

“By that concession Mr Sedley recognises that the application of natural justice principles, and in particular the right to be heard, must depend in each situation on the subject matter and the circumstances.

This was made clear in Payne v. Lord Harris of Greenwich [1981] 1 WLR 754. A prisoner sought a declaration that he was entitled to be given the reasons for refusing him parole so that he could make representations in rebuttal. This court rejected his appeal. Lord Denning M.R. said, at p. 757:

“No doubt it is the duty of all those concerned – from the member of the local review committee, to the Parole Board, to the Secretary of State – to act fairly. That is the simple precept which now governs the administrative procedure of all public bodies. But the duty to act fairly cannot be set down in a series of set propositions. Each case depends on its own circumstances.”

Shaw L.J. said, at p. 764:

“In the well-known case of Reg. v. Gaming Board for Great Britain, Ex partes Benaim and Khaida [1970] 2 Q.B. 417, 430, Lord Denning M.R. said: ‘It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject matter …’ In a context in which the public interest may be put at risk by the inopportune release of a prisoner on licence, no constraints or pressures should weigh upon the Parole Board in coming to what must in the end be a decision in which expedience must be an important influence.”

Brightman LJ referred to the same passage from Ex parte Benaim and Khaida and said, at p. 755: “The scope and extent of the principles of natural justice depend on the subject matter to which they are sought to be applied.”

Taylor LJ’s citation from Payne v. Lord Harris of Greenwich is of interest for present purposes. Lord Mustill in Ex parte Doody cited what he described as a crucial passage in the judgment of Shaw LJ’s judgment at page 763 in which he said that although, since the introduction of parole, a person sentenced to imprisonment may hope that part of his sentence may be served outside prison, he could not expect to be released before the expiry of his sentence.

Lord Mustill said that if the matter were approached in that way the Home Secretary could be regarded as exercising a very broad general discretion, in which all the relevant factors are weighed together when deciding whether the public interest permits release, in very much the same way as the discretion had been exercised before the Parole Board came on the scene and from that it was not a long step to hold that since the prisoner was essentially in mercy there was no ground to ascribe to him the rights which fairness might otherwise demand. However Lord Mustill held that that reasoning was much weakened now that the indeterminate sentence was at a very early stage formally broken down into penal and risk elements.

“The prisoner no longer has to hope for mercy but instead knows that once he has served the ‘tariff’ the penal consequences of his crime have been exhausted. Even if the Home Secretary still retains his controlling discretion as regards the assessment of culpability the fixing of the penal element begins to look much more like an orthodox sentencing exercise and less like a general power exercised completely at large” (556 F – 557 A).

Lord Mustill held that sound as it well might have been at the time, the reasoning of Payne v. Lord Harris of Greenwich on the duties of disclosure in relation to the recommendations of the Parole Board could not be sustained. One of his reasons for so holding was because of the continuing momentum in administrative law towards openness of decision making. (556 C – D).

Even though he agreed with the other members of the Court of Appeal in rejecting the prisoner’s argument that he was entitled to be given the reasons for refusing him parole so that he could make representations in rebuttal, Lord Denning M.R. in the passage in Payne v Lord Greenwich cited by Taylor LJ in ex parte Hague nonetheless held that it is the duty of all those concerned – from the member of the local review committee, to the Parole Board to the Secretary of State – to act fairly.

In his judgment in Ex parte Hague Taylor LJ appears to have drawn a distinction between a duty to act fairly and the application of the rules of natural justice. Taylor LJ distinguished between the position under Rule 43 and that under Rule 49 which was headed: “Rights of Prisoners Charged.” It provided that where a prisoner was charged with an offence against discipline he should be informed of the charge as soon as possible and in any case before the time when it was enquired into by the governor and that at any enquiry into the charge against a prisoner he should be given a full opportunity of hearing what was alleged against him and of presenting his own case.

Mr Sedley on behalf of the prisoner relied on the decision of the House of Lords in Leech v. Deputy Governor of Parkhurst Prison [1988] AC 533, which held that the Court has jurisdiction to entertain an application for judicial review of the prison governor’s award where the principles of natural justice have been breached. However Taylor LJ stated that there had never been any issue in that case as to the application of those principles because they were written into Rule 49. No such provisions were laid down in relation to Rule 43. On the contrary the specific inclusion of natural justice requirements in Rule 49 and their absence from Rule 43 afforded powerful support to the respondent’s case:

“In disciplinary proceedings which may result in punitive action, the full panoply of natural justice principles is appropriate and Parliament has provided that it should apply. Although the consequences of Rule 43 are in some respects akin to those imposed as punishment, the object of the rule is not punitive. Indeed, where it is invoked at the prisoner’s request it is specifically aimed at protecting him from illegal punishment at the hands of fellow prisoners. So, in the context of Rule 43, although the governor and the regional director must act fairly and make reasoned decisions, the principles of natural justice are not invoked in the rules. Instead, alternative safeguards are provided to protect the prisoner’s rights. Segregation can only exceed 24 hours by authority from the Secretary of State of the Board of visitors: Rule 43 (2). By Rule 43 (3) the governor may in his discretion terminate the segregation at any time. The prisoner has the right to see the governor and member of the board of visitors: Rule 8. The latter is required to hear any complaint or request the prisoner wishes to make: Rule 95 (1). The prisoner may petition the Secretary of State: Rule 7 (1).” [110 F – H]. (Emphasis added).

In that passage Taylor LJ identified two reasons why, although there was a duty to act fairly in considering whether to exercise the Rule 43 power to segregate a prisoner, that duty did not require the prison governor to observe the principles of natural justice. The first was the absence of an express provision to that effect, the inference no doubt being that Parliament did not for policy reasons consider that necessary or appropriate. The second was the existence of alternative safeguards.

The latter reason is, in my judgment, important when considering whether the decision in Ex parte Hague and the reasoning for it are distinguishable in the context of a decision to transfer a patient to a high security hospital. (I note that in the different but related context of Article 6 Sullivan LJ in R (Ahmed) v The National probation Service [2011] EWCA Civ 1667 laid great emphasis on the existence of alternative safeguards as one of the reasons for rejecting an argument that there is an Article 6 right to make representations prior to the imposition of parole conditions.) In distinguishing a decision to contrary effect of the Supreme Court of Canada Taylor LJ emphasised the same two reasons, namely the lack of indication in the Canadian report that the regulations provided, as did the English Prison Rules, a right to be heard in other contexts and the existence of other opportunities for prisoners to air their views and complaints. [111C].

Taylor LJ distinguished Kanda v. Government of Malaya on the basis that in that case Article 135 (2) of the Malaysian Constitution specifically ordained that before a police officer could be dismissed he had a right to be heard. Whether the absence of an express statutory right to be heard would today be a sufficient reason to hold that the rules of natural justice do not apply in any particular context must, in my judgment, be open to doubt in the light of (a) the decision of the House of Lords in Ex parte Doody, which of course came two years after the decision of the Court of Appeal in Ex parte Hague and (b) the speech of Lord Bingham of Cornwall in R (West) v Parole Board and R v (Smith) v Parole Board (No.2) [2005] 1 WLR 350 at paragraph 29. No such precondition appears in Lord Mustill’s formulation. Lord Bingham in R (West) did not consider the fact that all the relevant statutory provisions provided for oral hearings in some classes of case which did not include cases such as the present in which oral hearings were permitted but not required as in any way decisive. He said that the maxim expressio unius exclusion alterius can seldom, if ever, be enough to exclude the common law rules of natural justice. [Paragraph 29].

Taylor LJ cited with approval a passage in the judgment of Tudor Evans J in Williams v. Home Office (No.2) [1981] [1 All ER 1211] at 1247 in which he held that a prisoner did not have a right to be heard before transfer to a segregation unit:

“It seems to me that Parliament, as reflected in the Prison Act 1952 and the Prison Rules, drew clear distinctions between Rule 43 cases and cases of offences against discipline. In the former case a prisoner has no voice in the decision which is to be taken. When a man is transferred to a segregation unit he is not able to make any representations. In paragraph 166 of the Radzinowicz Report – (by a sub committee of the Advisory Council on the Penal System 1968) it is said that before transferring a prisoner to a segregation unit it is not necessary for them to have been guilty of an offence and it therefore follows that there is no right to be heard or to make any representation against the decision. … In all the circumstances of the case I do not consider that the principles of natural justice required that the plaintiff should have been given notice of what was intended and the opportunity to make representations that he should not be transferred to the unit. Such a step is not within the contemplation of the Prison Act 1952 or the Prison Rules and would be damaging to the exercise of the administrative power under Rule 43.” [111 E – G].

Both in his approval of Tudor Evan J’s judgment and in the earlier passage of his own judgment cited above Taylor LJ appears to have placed emphasis on the distinction between a power whose purpose is punitive and one whose purpose is not. However that distinction was not drawn by Lord Mustill in his formulation of principles in Ex parte Doody and did not prevent the Court of Appeal in McAvoy from approving the application by Rose LJ in Ex Parte Duggan of those principles to decisions as to Category A status which are not concerned with any punitive element.

It is also clear that at least one of the reasons which led Taylor LJ to reach the conclusion he did was the consideration of policy. That appears from his approval of Tudor Evans J’s statement that an opportunity to make representations prior to transfer to a segregation unit would be damaging to the exercise of the administrative power under Rule 43. It is also apparent from his conclusion that apart from the urgency of decisions under Rule 43 there might well be other public policy grounds for not giving reasons in advance to the prisoner so as to enable him to make representations. Giving reasons would often require unwise disclosure of information which could reveal to prisoners the extent of the governor’s knowledge about their activities. It could also reveal the source of such information, thereby putting informants at risks and could cause an immediate escalation of trouble. [109 H -110 A]. That was in addition to the urgency of decision under Rule 43.

It is also apparent from the extract of the judgment of Ralph Gibson LJ in the Divisional Court in Ex parte Hague with which Taylor LJ stated that he agreed:

“In our view, having due regard to the interests of the prisoner and of society at large, including the due administration of the prisons, fairness does not require that a prisoner be given the right to be heard before a decision affecting him is made under Rule 43”. [111 h -112 A].

Again in his agreement with the reference in that passage to what fairness did not require there was in my judgment an implicit assumption by Taylor LJ of the proposition which he earlier spelled out that although there is no right to make representations before a decision is made as to whether to segregate a prisoner, the governor and the regional director must act fairly in the context of making such decisions.

Taylor LJ went on to hold that there was no entitlement in law on the part of a prisoner to be given reasons for the decision to segregate him after it was taken.

“No doubt in many cases the governor will be able, as here, to give reasons at the time of the decision or shortly after. But the same considerations of public policy as persuaded me, and indeed the Divisional Court, to hold that reasons are not in law required as a matter of course before a decision to segregate may apply with equal force after the decision. Again, the guiding factors must be the subject matter and the circumstances. … The applicant has the right under the rules to see a member of the board of visitors. If he does not know the reasons for his segregation he can ask. The member can then enquire of the governor and relay to the prisoner any information which security permits to be given. I would not be prepared to hold that in all cases a prisoner has a legal right to be given the reasons for his segregation.” [112 C –F].

It is again of note that while basing his decision on policy Taylor LJ also emphasised the existence of alternative safeguards provided for in the rules whereby the prisoner might gain access to at least some of the reasons for the decision to segregate him.

The decision of the Court of Appeal in Ex parte Hague has recently been followed by the Court of Appeal in R (King) and Others v. Secretary of State [2012] EWCA Civ 376. In that case the Court of Appeal considered three related cases which raised issues concerning procedures relating to decisions to move prisoners or detainees from normal regimes to cellular confinement or segregation. The case was principally concerned with Article 6. However it was also submitted, particularly on behalf of one of the appellants, that even if Article 6 did not avail him he should be able to invoke common law procedural fairness in support of his case that he was not provided with adequate disclosure or reasons to permit a meaningful opportunity to challenge his segregation.

In a passage of his judgment with which both other members of the Court of Appeal agreed Maurice Kay LJ held that the Court of Appeal was bound by the following passage in the judgment of Taylor LJ in Ex parte Hague, it being common ground that it was part of the ratio of the case:

“No doubt in many cases the governor will be able, as here, to give reasons at the time of the decision or shortly after. But the same considerations of public policy as persuaded me … to hold that reasons are not in law required as a matter of course before a decision to segregate may apply with equal force after the decision. Again the guiding factors must be the subject-matter and the circumstances… I would not be prepared to hold that in all cases a prisoner has a legal right to be given the reasons for his segregations.” [Para 69].

Observing that it would be an irony if, having failed on his Article 6 case, Mr Southey Q.C., who appeared on behalf of the appellants, could succeed in procuring a change in the common law by reference to Article 6, his argument being that the Court of Appeal should feel free to innovate because of subsequent legal developments such as the enactment of the Human Rights Act and the increasing recognition of a duty to give reasons illustrated by North RangeShipping Limited v Seatrans Shipping Corporations [2002] 1 WLR 2397, Maurice Kay LJ said that he was entirely satisfied that the Court remained bound by Ex parte Hague.

Maurice Kay LJ added that even if there were scope for some development of the law the facts in relation to the appellant Bourgass did not favour the submission on his behalf. He knew that the prison authorities considered him to be a bully and had placed him in the anti-bullying regime. He knew that he was suspected of involvement but not direct participation in the assault on another identified prisoner. No doubt if he had attended the several Segregation Review Board meetings which he chose not to attend he would have discovered more about the concerns of the authorities. In any event an important aspect of the case against him was the result of intelligence derived from an undisclosed source. He cited with approval the comments of Irwin J in the Court below:

“The law must recognise the realities of the situation with which the prison authorities are dealing. Giving information in this kind of context is bound to carry considerable risks on frequent occasions. Any others views is quite unrealistic.

The prison authorities are bound to receive relevant information but unable to reveal the source. Are they to ignore such intelligence in making judgments? That is inconceivable. They cannot solve the problem by dropping prosecutions, as prosecuting authorities do from time to time. All the same prisoners and all the same risks will still be there tomorrow.” [Para 71].

Maurice Kay LJ stated that that passage echoed an earlier passage in the judgment of Taylor LJ in Ex parte Hague where he referred to the risk that disclosure might cause “an immediate escalation of trouble”. Even if the law were to develop, it would still have to embrace those concerns. That is why he said it could not extend to a prisoner in cases such as those before the Court the same procedural protection enjoyed by those on the threshold of a loss of liberty such as controlees under control orders. [Para 71].

It is convenient next to refer to some additional authorities touching on the scope and extent of the requirements of the common law duty of fairness where it is engaged. The three main requirements contended for by the Claimant are the right to make representations, preferably before the decision to transfer is made, or failing that before it is implemented and in any event at least after it is made and implemented, the right to disclosure of the reports and other materials before the assessment panel on the basis of which the decision is made and/or the right for the patient and/or his representative to attend at an oral hearing of the assessment panel.

In MacAvoy Lord Woolf M.R. addressed the question whether the ordinary practice which developed whereby a prisoner was not shown the Category A reports but rather a gist document summarising their contents, which maintained the anonymity of the report writers and attributed nothing to any particular source, achieved the fairness which, in the passage already cited, he said that the approach should be to ensure so far as practical when something has the impact which being placed in Category A has on a prisoner:

“However, in considering whether in any particular situation the procedure which is adopted is fair or unfair, one has to reach a decision not only in the light of the situation of the prisoner, but also in the light of the practical considerations which must apply to the proper running of a prison. The very fact that we are talking about prisoners who have been categorised as category A indicates that they are among those who are the most dangerous within the system. There can be considerable difficulty within the prison service in the managing of those prisoners ...”

... in the end it seems to me that the question this court has to answer is whether the procedure which is in fact adopted on the review of categorisation is one which complies with the requirements of fairness, having regard to the nature of the exercise being carried out. As to that, I have no doubt, having seen the material in this case, that the way the process was carried out in this case was perfectly satisfactory and perfectly fair.

I can see difficulties for the prison services in adopting the approach which the applicant would urge upon them of normally disclosing all the material which is relied upon and, whenever it was appropriate to do so, seeking public interest immunity. A procedure of that nature seems to me to be inconsistent in that it is too formal for the sort of administrative decision which is being reached in relation to categorisation.

The House of Lords in Doody’s case [1994] 1 AC 531 endorsed an approach which involved providing the gist of the material relied upon rather than the actual material itself. It seems to me that in a great many cases the interests of a prisoner will be fully protected if the procedure envisaged by Lord Mustill in Doody’s case is adopted. In my judgment the procedure which is being followed at present by the Prison Service in relation to the review of the category in which a prisoner is placed accords with that case. That is a perfectly satisfactory procedure, particularly and most importantly because, where appropriate, the Secretary of State or those responsible for the review, is prepared toreconsider, in the circumstances of any particular case, whether additional information should be made available.

In my judgment what is done in pursuance of that policy provides sufficient safeguards for a person in the position of the applicant. It does not seem to me that he should receive either the actual information or the names of those providing that information. It is sufficient if the gist of the report plus any special information is provided to him.” [798H].

I would draw attention to two features emphasised by Lord Woolf as reasons for rejecting a requirement of blanket disclosure of all the material seen by the Category A decision makers. First that it was too formal for the sort of administrative decision involved and second the willingness of the decision-taker to reconsider in the circumstances of any particular case whether any additional information should be made available.

An example of a Category A case in which the Court of Appeal held that exceptionally disclosure of factual reports and an opportunity to make representations on them at an oral hearing was required is the case of R (Williams) v Secretary of State for the Home Department [2002] [EWCA Civ 498], [2002] [1 WLR 2264].

The Court of Appeal held that the Prison Service had erred by failing to hold an oral hearing to consider the recategorisation of the prisoner detained in Category A conditions after the Parole Board had recommended recategorisation. An open hearing before the Parole Board which resulted in conclusions favourable to the prisoner was followed by a closed hearing before the Category A review team. On the basis of reports which had not been available to the Parole Board or to the appellant or his legal advisors, the Category A review team had reached conclusions adverse to him which were seriously damaging to his prospects of release. For the Court Judge LJ, as he then was, said:

“An oral hearing would have enabled the reasons for the contradictory views to be examined on behalf of the appellant and for the contents of any adverse report to be directly addressed. In the final analysis the review team would, of course, have reached its own decision but an oral hearing and proper disclosure would have ensured that the decision was the result of a better informed process and the conclusions and the reasons for them would then have been received with correspondingly greater confidence.” [Paragraph 32].

The exceptional circumstances which led to the finding that there should have been an oral hearing were the fact that there were contradictory views expressed by the Parole Board and the Category A review team with the obvious prospects of major inconsistency between their respective conclusions and the fact that adverse reports had not been disclosed to the Claimant or his advisors.

In Lord Munby J posed the question why fairness requires the type of disclosure referred to in Ex parte Duggan and Ex parte McAvoy.

“In one sense the answer is obvious, and indeed it is recognised in PSO 1010 at paragraph 4.1, but it bears repeating. It is because, as Lord Mustill put it in Doody at p. 560 G:

“The person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests.”

In this context I draw attention also to what Rose LJ said in R V Secretary of State for Home Department ex parte Creamer and Scholey [1992] in a passage “wholly endorse[d]” by Lord Woolf M.R. in ex parte McAvoy at p. 798 C:

“A prisoner’s right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss of liberty are, or should be, an anathema in a civilised, democratic society.” [Paragraphs 13 and 14].

The proper approach to the question whether in any particular case fairness requires an oral hearing was laid down by the House of Lords in R (West) v Parole Board and R (Smith) v Parole Board (No.2) [2005] 1 WLR 350. In that case the Parole Board accepted that it had a public law duty to act in a procedurally fair manner when resolving challenges to licence revocations. Lord Bingham of Cornhill posed the question what fairness in that context required. He said that Lord Mustill in Ex parte Doody made plain that the requirements of fairness change over time, are flexible and are closely conditioned by the legal and administrative context. Although Lord Mustill did not suggest that an oral hearing was called for in that case, Lord Bingham pointed out that the procedure in that case had since been superseded and was in any event very different from that with which he was concerned. Where licensed revocations were challenged by mandatory and discretionary life sentence prisoners and Her Majesty’s Pleasure detainees the Parole Board now routinely held oral hearings. Lord Mustill’s guidance therefore had to be followed in a different legal and factual environment. [Paragraphs 27].

In considering what procedural fairness in the present context required Lord Bingham said that account must first be taken of the interests at stake. On one side was the safety of the public with which the Parole Board cannot gamble. On the other was the prisoner’s freedom, which was a conditional and to that extent precarious freedom. [Paragraph 30].

Lord Bingham held that while an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The possibility of a detainee being heard either in person or where necessary through some form of representation had been recognised by the European Court as, in some instances, a fundamental procedural guarantee in matters of deprivation of liberty. Having cited a number of decisions of the ECHR Lord Bingham quoted from the judgment of Grenham J in Goldberg v Kelley [1970] 397 US 254 which he said helpfully described the value of an oral hearing:

“Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mould his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second hand presentation to the decision maker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence.” [Para 31].

In a well known passage Lord Bingham then set out the reasons why the circumstances in which fairness requires an oral hearing are not confined to cases in which the factual issues are in dispute:

“The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.” [Paragraph 35].

Lord Slynn said:

“There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify actions said to be a breach of licence conditions, or where the officer's assessment needs further probing, fairness may well require that there should be an oral hearing. If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the board should be predisposed in favour of an oral hearing. On any view the applicant should be told that an oral hearing may be possible though it is not automatic; if having been told this the applicant clearly says he does not want an oral hearing then there need not be such a hearing unless the board itself feels exceptionally that fairness requires one.” [Paragraph 50].

Lord Hope of Craighead said:

“I agree therefore that the common law test of procedural fairness requires that the board re-examine its approach. A screening system needs to be put in place which identifies those cases where the prisoner seeks to challenge the truth or accuracy of the allegations that led to his recall, or seeks to provide an explanation for them which was not taken into account or was disputed when his recall was recommended by his supervising probation officer. Consideration then needs to be given to the question whether it is necessary to resolve these issues before a final decision is made as to whether or not the prisoner is suitable for release. If it is, an oral hearing should be the norm rather than the exception.” [Paragraph 68].

In OsborneandBooth v Parole Board [2011] UK HRR 35 at 43 Carnwath LJ expressed the view that the guidance emerging from the speeches in Smith and West was accurately summarised in the last three extracts which I have cited. He also recorded that since the decision in Smith, at which time oral hearings were wholly exceptional, there has been a significant change in the practice of the Parole Board. In respect of indeterminate sentence review the changes to the rules have had the effect that in respect of any review where it is not considered that the offender is unsuitable for release it should be sent to an oral hearing. The Parole Board also has a policy of directing oral hearings wherever the offender is considered suitable for progressive moves to open conditions. In respect of determinate sentence recalls, the proportion currently sent for oral hearings is much smaller, but still significant. [Paragraph 29].

As to the role of the Court and how the Court should approach a review of the fairness of a decision of the Parole Board not to hold an oral hearing before deciding whether to uphold a recall from licence or to release a prisoner serving an indeterminate sentence, Carnwath LJ stated that it was common ground that the issue of fairness is ultimately one of law for the Court. Carnwath LJ approved the statement by Lord Donaldson M.R. in R v Panel on Takeovers and Mergers Ex parte Guinness Plc [1990] [1 QB 146] AT 178 – 179:

“… I would… accept that whether the rules of natural justice have been transgressed is not to be determined by a Wednesbury test: “Could any reasonable tribunal be so unfair?” On the other hand, fairness must depend in part on the tribunal’s view of the general situation and a Wednesbury approach to that view may well be justified. If the tribunal’s view should be accepted, then fairness or unfairness falls to be judged on the basis of that view rather than the Court’s view of the general situation.” [Paragraph 39].

Carnwath LJ preferred that statement to one of Lloyd LJ because in his view it draws a clearer distinction between the decision-maker’s consideration of the “general situation”, which is reviewable only on Wednesbury grounds, and the judgment of the Court on the basis of that assessment of what fairness requires. That seemed to him a more helpful analysis than simply to require the Court to give “great weight” to the decision-maker’s view of what fairness requires.

Carnwath LJ also approved Sedley LJ’s summary of the correct approach in Terluk v Berezofsky [2010] [EWCA Civ 1345], [2010] [All ER (D)] 270 [Nov] [19]

“What the appellate court is concerned with is what was fair in the circumstances identified and evaluated by the judge.”

Carnwath LJ held that:

“Translated to the present context, the question of fairness should be judged in the context of circumstances identified and evaluated by the Parole Board, including their appraisal of the material already available, formed with the expertise which the court does not share, and their resulting assessment of what will be needed to satisfy it that release will not put the public at risk.” [Paragraph 42].

In R (H) v Secretary of State for Justice [2008] EWHC 2590 (Admin) Cranston J summarised the legal position in respect of oral hearings as follows:

“Procedural fairness sometimes demands an oral hearing. There can be greater confidence with an oral hearing that the relevant standards have been properly applied and that the facts on which the decision is based are accurate. The oral hearing also gives the person affected by the decision the opportunity to tailor the arguments to the concerns of the decision maker. The interests at stake are such as to trump other factors in the balance such as cost and perhaps efficiency. It is clear that procedural fairness does not impose the straightjacket of a quasi-judicial process and more informal procedures than what one expects before the courts or even tribunals may be acceptable. An oral hearing does not necessarily imply the adversarial process.

That is the legal context of this case where the claimant challenges a decision by the defendant, now the Secretary of State for Justice, that he should remain a Category A prisoner. He is serving a sentence of life imprisonment, his minimum term has expiredand he is currently detained in a Protected Witness Unit. These factors, he contends, mean that the Secretary of State erred by failing to hold an oral hearing when determining his categorisation. My conclusion is that there should have been an oral hearing in the particular circumstances of the claimant's case.” [Paragraph 1-2].

In that case Cranston J held that the Secretary of State should have held an oral hearing before determining whether the claimant’s category A status should be maintained. He held that in the context of the case the consequences of the categorisation decision were sufficiently important that they required a standard of procedural fairness whereby the claimant was able to put his case at an oral hearing. The principle of procedural fairness required a focus on the context of the case, taking into account the nature of the decision and its consequences and the interests at stake.

He held that the context involved five particular factors which cumulatively tipped the balance in favour of an oral hearing. The first two, namely that the claimant was a category A prisoner and that his tariff had expired, were significant because their combination meant that delay in moving from category A conditions was highly likely to delay his eventual release and his liberty was thus obviously affected. Since the consequences of an adverse category A decision were so serious, those two factors pointed in the direction of a particularly high standard of procedural fairness. Third, the inconsistency between the approach of the local prison, which had twice recommended that the claimant should be recategorised, and that of the Director of High Security Prisons supported the case for an oral hearing to explore it in greater depth. At the end of the day there might be no inconsistency but simply a difference of opinion and for very good reasons, but it was as well that the matter be explored at an oral hearing. Fourth, the approach of the Category A Review Team might well benefit from the closer examination which an oral hearing could provide since the local prison’s views on risk and its management were matters which might be better tested by way of an oral hearing. Finally, an oral hearing might better explore the special factors appertaining to the claimant’s location in the Protected Witness Unit which bore on various factors such as risk. (Paragraphs 22 to 25).

Finally I turn to the important case of R v Secretary of State for the Home Department Ex parte Harry [1998] 1 WLR 1737. In that case Lightman J upheld a challenge to the procedures then followed by the Secretary of State in (a) referring to the Advisory Board on Restricted Patients (“The Board”) a recommendation from the Mental Health Review Tribunal that a patient detained in Broadmoor under a restriction order pursuant to Section 41 of the 1983 Act should be transferred to a medium security hospital and (b) acting on the Board’s Advice.

A restriction order is imposed where a hospital order is made in respect of an offender and it appears to the Court that it is necessary for the protection of the public from serious harm to order that he shall be subject to the restrictions set out in Section 41. Those restrictions include a requirement that the powers to grant leave of absence to the patient under Section 17 of the 1983 Act, to transfer him in pursuant of regulations under Section 19 and to order his discharge under Section 23 are exercisable only with the consent of the Secretary of State.

It was the policy of the Secretary of State in difficult cases to refer questions of discharge, transfer and grant of leave to the Board for the purpose of obtaining its recommendations. The Board consisted of eight members, of whom two were lawyers including one judge, two were experienced forensic psychiatrists, two were social work representatives and two had special experience of the criminal justice system. It was also his practice since 1987 to obtain advice in respect of transfer or the grant of leave from the Mental Health Review Tribunal. Whilst Section 72 (3) of the 1983 Act provides for the Tribunal to make recommendations as to the transfer and grant of leave in the case of unrestricted patients, no provision is made for such recommendations in the case of restricted patients. However the Secretary of State announced in 1987 that if, in the course of its decision on an application to discharge a restriction order, the Tribunal made a recommendation as to a transfer or a grant of leave, and the restricted patient’s responsible medical officer made a proposal based on that recommendation, he would take full account of the Tribunal’s views.

The applicant was admitted to Broadmoor by the Crown Court following convictions for manslaughter pursuant to what then became a Section 37 hospital order and a Section 41 restriction order without limit of time. In 1996 on his application for the discharge of the restriction order, the Tribunal decided that it should not be discharged, but nonetheless recommended a transfer to a medium security hospital. That led to a proposal to the Secretary of State by the applicant’s registered medical officer for a period of trial leave under Section 17 rather than a formal transfer under Section 19. On receipt of the proposal the Secretary of State submitted to the Board a dossier for its recommendation.

A non-medical member of the Board visited Broadmoor where she interviewed the registered medical officer, a staff nurse and the applicant. She prepared a report for the Board setting out the information which she had gathered. Neither it nor its gist was disclosed to the applicant. The Board concluded that the applicant was as dangerous and manipulative as ever and that it could not support the proposal. A note of its deliberations and recommendations was passed to the Secretary of State, who disclosed neither the note nor its gist to the applicant. The Secretary of State followed the advice of the Board.

Lightman J held that the current procedures followed by the Secretary of State in making the reference to the Board and acting on its advice did not comply with the requirements of procedural fairness because the applicant was not furnished with the report to the Board or informed of the gist of it or invited to make representations on it to the Board and because he was not furnished with the note of the Board’s deliberations and conclusions or invited to make representations to the Secretary of State before he acted on it.

Lightman J recorded that during the course of the hearing, anticipating his decision to that effect, the Secretary of State announced a fundamental change in practice which in future was to be as follows:

“Where after an extra-statutory recommendation by the Mental Health Review Tribunal, the Secretary of State seeks advice from the Advisory Board on whether to give his consent to the transfer of a patient, or grant leave of absence, pursuant to his powers under section 41(3)(c) of the Mental Health Act 1983, the Secretary of State accepts that the patient is entitled by reason of procedural fairness (subject to public interest immunity or some other substantial reason for departing from these principles which will normally be communicated to the patient’s advisers): (1) to be told the gist of any new information before the Advisory Board on a relevant point and, in particular to be told the gist of the report to the Advisory Board by its member who has visited the hospital; (2) to make written representations to the Advisory Board in response to such material before the Advisory Board reaches a conclusion on its advice to the Secretary of State; (3) to be given a copy of the advice from the Advisory Board to the Secretary of State, and to be given an opportunity to make written representations on the matter to the Secretary of State before the Secretary of State reaches his conclusions; (4) to be given reasons for the decision of the Secretary of State; (5) to make, thereafter, any further written representations to the Secretary of State which will be considered, it being a continuing process of review by the Secretary of State of the need for and application of restrictions.”

Lightman J endorsed the adoption of that policy. The applicant maintained however that the restricted patient should be entitled to see the whole of the report to the Board. As to that Lightman J expressed the view that:

“in accordance with the established principles of law, though the reference to the Board is part of a decision-making process which has a direct impact on the liberty of the patient, the restricted patient’s entitlement is limited to the gist of the report: see R v Secretary of State for Home Department Ex parte Duggan [1990] [4] 3 All ER 277, 288 per Rose LJ. But it is to be remembered that what is sufficient to constitute the gist for one purpose may not be sufficient for another. When a fundamental right is in issue, a more expansive and informative summary may be called for. The detail required must depend on what (having regard to the importance of the issue at stake and of the contents of the documents in question on that issue) fairness requires to enable the making of meaningful and focused representations. The Secretary of State must consider in each case whether a full and fair understanding of the gist of the report can be conveyed without production of the report itself and whether good administrative practice may also call for its production. Good administrative practice may call for the production of the document where this is necessary to avoid the risk of a legitimate sense of concern or grievance and there is no countervailing consideration of any weight and no legitimate reason for wishing to withhold it.” [1748 B – D].

It is in my view of particular significance that Lightman J described the reference to the Board as part of the decision making process which had a direct impact on the liberty of the patient, given that, just as in this case the statutory power to authorise transfer was conferred on the referring hospital and not the Broadmoor Admissions Panel, the power to authorise transfer in that case was conferred on the Secretary of State and not on the Board. Thus Lightman J looked beyond the fact that the Board had no statutory power to decide whether the patient should be transferred to the reality of the key role which the Board played in the decision making process rather than just the form. Although the Secretary of State’s policy of referring difficult cases to the Board included cases raising questions of discharge, the decision in issue in that case was a decision whether to order the transfer of the applicant from Broadmoor to a medium security hospital or to grant him leave for a trial period to such a hospital. He thus regarded such a decision as one which has a direct impact on the liberty of the patient. That was no doubt because of his conclusion that “the applicant’s transfer to conditions of lesser security is a vital stage of his treatment and rehabilitation and affects his future prospects of discharge.” … and that “the importance of a period of trial leave or transfer to [a medium security hospital] has as great impact upon patients’ eventual prospects of discharge as a prisoner’s categorisation as Category A or B.” [1742 D –E].

The first question is whether the common law duty to act fairly is engaged when a decision is made as to whether to transfer a patient from a medium to a high security hospital. There is as I have mentioned no decided case to which my attention was drawn in which that question has been asked and answered. It is therefore necessary to consider whether in the authorities to which I have referred there are statements of general principle which either require or suggest an answer.

Reverting to the second of the two questions I posed at the outset, there is in my judgment no general principle of law established in any decision binding on me which confines a duty to act fairly to cases where a decision will or may affect or determine the claimant’s common law, statutory or Convention rights. To the contrary Lord Mustill’s first general principle in ex parte Doody that “where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances” suggests that, at least where a decision is made pursuant to an administrative power conferred by statute, it is not so confined. The principle as formulated was not qualified by reference to the effect of the exercise of the administrative power on a claimant’s common law, statutory or Convention rights.

So does Lord Mustill’s fifth principle that “fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing favourable results, or after it is taken, with a view to procuring its modification”. Although that is in terms addressed to the question of what the duty of fairness requires rather than whether it exists in any given case, it is in my judgment significant that the principle is couched in terms not of whether a decision may interfere with a pre-existing legal right but rather of whether it may adversely affect a person. Lord Mustill cited with approval the fact that the Secretary of State “properly” accepted that his six principles apply in their generality to prisoners.

In similar vein (albeit also in the context of what the duty of fairness requires rather than whether it exists) Lord Mustill doubted the wisdom of discussing the problem in terms of “prisoner’s rights” given that as a result of his own act the position of the prisoner is so forcibly distanced from that of the ordinary citizen and preferred to assert that the Secretary of State ought to implement the scheme as fairly as he can.

There are dicta in a number of the authorities which emphasise the importance of the decision to the Claimant as a if not the critical factor determining whether a duty to act fairly exists as well as what it requires to be done.

Thus in ex parte Doody Lord Mustill approached the question whether a duty to disclose the substance of the matters on which the decision maker intends to proceed exists, how far it goes and how it should be performed by asking whether a life prisoner “whose future depends vitally on the decision” of the Home Secretary as to the penal element and who has a right to make representations upon it should know what factors the Home Secretary will take into account.

The factor which Lord Oliver in Leech v Parkhurst Prisoner Deputy Governor identified as requiring the function of adjudicating upon charges of infraction of prison discipline to be subject to the general common law principle which imposes a duty of procedural fairness was that it was a public function which affects the liberty and to a degree the status of a person affected by it (see page 578). Although he described the general common law principle as imposing a duty of procedural fairness when a public authority makes a decision not of legislative nature affecting “the rights, privileges and interests of an individual”, the reference to the status of a person affected and to the privileges and interest of an individual suggests that the affecting of something falling short of a pre-existing legal right is sufficient to engage the common law duty of fairness.

The factor which led Rose LJ in ex parte Duggan to conclude that a decision by a prison governor that a “lifer” should be Category A engaged the common law duty of fairness was that it bears directly upon a prisoner’s prospects of release and thus has a direct impact on the liberty of the subject. (288). Although as discussed above Rose LJ referred to a direct impact the connection between the decision and the continuing detention of the prisoner was in fact not immediate, unlike the Home Secretary’s determination of the penal tariff in ex parte Doody. A prisoner who is categorised B does not thereby secure his release from prison. The connecting factor between the decision and the prisoner’s liberty is the fact recognised by the court that in reality a decision that a prisoner should become or remain Category A will delay the date of his ultimate release from prison because it is in practice inconceivable that the Secretary of State would sanction the release of a Category A prisoner.

In McAvoy the overarching test identified by Lord Woolf MR as to whether it is desirable that the approach should be to ensure, as far as practical, that fairness is achieved is whether “something has the impact which being placed in Category A has on a prisoner”(789H). Again the focus was on the importance of the effect of the decision on the claimant.

It is in my judgment instructive to note that Rose LJ in ex parte Duggan, emphasised, when applying Lord Oliver’s dicta in Leech, that they applied a fortiori where what was sought to be challenged was not merely a disciplinary decision of limited significance (as he characterised the adjudication upon charges of prison discipline in issue in Leech) but a decision which had a direct impact on the date of a prisoner’s ultimate release.

Rose LJ did not consider that there was a material practical distinction between a decision of the Parole Board in relation to the release of a life prisoner and the decision of a governor that a “lifer” should be category A. Neither the fact that the impact of it on the timing of the “lifer’s” ultimate date of release was more indirect than the impact of the former decision nor the fact that the latter decision was not made in the context or for the purpose of fixing a penal sentence prevented it from engaging a common law duty of fairness.

The contrast between the decisions of Jowitt J in ex parte Perries and HHJ Pelling QC in Ali also reflects the importance of the nature and degree of any adverse consequences to the claimant flowing from the decision to the question whether it attracts a common law duty of fairness and if so what it requires to be done. The crucial difference between the two cases was the absence in the former of evidence that a Category D prisoner had a better chance of being granted parole than a category C prisoner, whereas in the latter HHJ Pelling QC concluded that authorities like ex parte Duggan turned on the conclusion that a decision to retain a prisoner within Category A would prevent him from being granted parole and thus had a direct effect on the liberty of the subject. He concluded that the common law duty of procedural fairness is engaged where the function being carried out affects the liberty and/or status of the persons affected by it and went further by adding that it did not follow that it has no application in any prison related issue that does not engage liberty in the same stark way as it did in ex parte Duggan.(para 18).

To like effect is the decision of Elias LJ siting in the Divisional Court in Abdullah and his linking of his view that the imposition of a higher risk escape category is a very significant matter with his conclusion that it is well established that before a final decision is taken about the appropriate escape classification the prisoner should have an opportunity to make representations so as to seek to influence the decision.(paragraph 10).

In my judgment on proper analysis neither of the Court of Appeal decisions in ex parte Hague and ex parte King which followed it reached conclusions which would prevent me from holding that a decision whether to transfer a patient from medium to high security engages a common law duty of fairness.

First in ex parte Hague Taylor LJ cited with approval Lord Denning M.R.’s general statement of principle in Payne v Lord Harris of Greenwich that the duty to act fairly is the simple precept which now governs the administrative procedures of all public bodies including in that case all the public officials and bodies concerned, from the member of the local review committee to the Parole Board to the Secretary of State. Indeed he echoed that statement by expressing the view that, even though the full panoply of the rules of natural justice did not apply to the power to segregate a prisoner under Rule 43 as they did to disciplinary proceedings under Rule 49, whose object was punitive, the governor and regional director had to act fairly.(110F)

Second, it is of course the case that in ex parte Hague the Court of Appeal held that the rules of natural justice did not apply to the exercise of the powers under Rule 43 and that there was no duty to afford a prisoner an opportunity to make representations before a decision was reached or to inform him afterwards as to the reasons for the decision. However that was a holding as to the limits of what the duty to act fairly required in the particular circumstances of a decision under Rule 43 and not a holding that the decision did not engage any duty to act fairly. Moreover that secondary question as to what are the requirements of the duty to act fairly was held by Lord Denning M.R. in the passage of his judgment in Payne v Lord Harris approved by Taylor LJ to depend in each case on its own circumstances (page 757). That fundamental proposition was of course also a central part of Lord Mustill’s subsequent formulation in ex parte Doody: “(4) The principles of fairness are not to be applied by rote identically in each situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects.”

Third it is clear from Taylor L.J.’s judgment that the factor that persuaded him (as it did Ralph Gibson LJ in the Divisional Court with whom he agreed) that the duty to act fairly did not require in every case reasons to be given for a decision to segregate a prisoner either before or after the decision was taken was considerations of public policy.(para 69). Inevitably such considerations will depend on and vary according to the particular circumstances and subject matter of the decision under consideration in any case, which he held must be the guiding factors (ibid).

Without doubt questions of public policy fall to be considered when considering the extent of what is required by the duty to act fairly in any particular case. But it does not follow that they will be the same or lead to the same conclusion in every situation. In ex parte Hague the policy considerations which appear to have been of greatest concern were (a) the need in some cases to take a decision whether to segregate a prisoner as a matter of urgency for safety reasons which might be incompatible with giving the prisoner a right to make representations in advance and (b) the risk that even giving reasons after the event might reveal to prisoners the extent of the governor’s knowledge about their activities and could also reveal the source of such information thereby putting informants at risk and could cause an immediate escalation of trouble (109H-110A)

In my judgment the effect of the decisions in ex parte Hague and ex parte King so far as relevant for present purposes is that in considering the scope of what is required of the relevant decision maker by the duty to act fairly the court must take into account and give due weight to all relevant policy considerations. It does not follow that those which carried the day in ex parte Hague will be the same in the context of a decision whether to transfer a patient from a medium to a high security hospital.

Fourth it appears that in rejecting the duty to tell the prisoner the reason for the decision to segregate him contended for by the appellant the Court of Appeal was influenced by the fact that there were other safeguards open to him even without the duty contended for. The inference is that if there are no adequate alternative safeguards that may be a factor arguing in favour of a particular duty in a particular case. Nor is it apparent that there are in the present context, as there were in ex part Hague, other provisions which expressly provide for rights to be heard or informed from which an inference could be drawn that it was intended that no such rights should be afforded, to a patient whose transfer is being decided even if, which as I have indicated must be open to doubt, such an inference could now properly be drawn in the light of the speeches of Lord Mustill in ex parte Doody and Lord Bingham in the House of Lords in West.

As to the first question which I posed at the outset, there appears to be no binding statement of law to the effect that the circumstances in which the common law duty to act fairly is engaged are confined to the exercise by a public authority of a power conferred directly or indirectly by statute. Many of the statements of principle either refer to or assume the exercise of such a power (see for example Lord Mustill in ex parte Doody) and most of the cases in which the question has been considered concern the exercise of such a power.

There are however statements of principle which are not so confined (see for example Lord Oliver in Leech, Lord Denning MR in Payne, Rose LJ in ex parte Duggan, Taylor LJ in ex parte Hague and Lord Woolf M.R. in McAvoy). Moreover there are cases in which the court has held that a duty to act fairly exists even though the decision under challenge was not made pursuant to a statutory power (see Ali, Abdullah and ex parte Harry). Indeed in Ali the point was a part of the ratio decidendi in that the defendant had specifically submitted that because the issue of allocation or review of ERC was essentially one of internal prison management and not governed by statute it was not open to criticism on the grounds identified. The rejection of that submission was a necessary part of HHJ Pelling QC’s conclusion that the process of deciding on ERC engaged the common law duty to act fairly.

There are in my judgment striking similarities between the issues raised in this case and those decided in favour of the applicant by Lightman J in Ex parte Harry. Although that case concerned a decision whether to transfer a patient from a high security hospital to a medium security hospital rather than the other way around (and the patient was detained pursuant to a restriction order), it is plain that the factor which most influenced Lightman J was his view that the decision making process had what he described as a direct impact on the liberty of the patient. In fact the impact of a transfer from Broadmoor to a medium security hospital on the patient’s liberty is indirect. The patient once transferred remains subject to detention, the criteria for detention being different from the criteria for detention in high security. The impact on his liberty arises from the fact, as Lightman J found it and as I find it to be, that transfer to conditions of lesser security is a vital stage of the patient’s treatment and rehabilitation and affects his future prospects of discharge. Lightman J held that a decision as to a period of trial leave or a transfer to a medium security hospital has as great an impact upon a patient’s eventual prospects of discharge as a prisoner’s categorisation as category A or B. It was that analogy which led him to conclude that the common law duty of fairness held to exist by Rose LJ in Ex parte Duggan in the context of a Category A decision applies to a decision whether to transfer a restricted patient from high to medium security. There is nothing in the evidence to which I have referred which suggests that Lightman J’s holding as to the impact of such a decision on a patient’s eventual prospects of discharge is no longer accurate.

Indeed there is a parallel between Lightman J’s equating of the effect on a patient’s eventual prospects of release of a transfer to a medium security hospital and the effect on a prisoner’s prospects of release from prison of his categorisation as A or B and Rose LJ’s holding in ex parte Duggan that there was no material practical difference between a decision of the Parole Board in relation to the release of a life sentence prisoner and the decision of the governor that a “lifer” should be Category A, because “both decisions…bear directly upon a prisoner’s prospects of release”.

It is true that the impact on the patient’s liberty is more direct in the context of a decision whether to transfer him out of Broadmoor to a medium security hospital (as in ex parte Harry) than it is in the context of a decision whether to transfer him into Broadmoor. Nonetheless in my judgment it would be surprising if for that reason alone the common law duty of fairness which has been held to apply to the former decision were not to apply to the latter decision. The impact on the prisoner’s liberty in ex parte Doody of the length of minimum sentence imposed was more direct than the impact on the prisoner’s liberty in ex parte Duggan of the categorisation as A or B. But that did not inhibit Rose LJ from concluding that the common law duty of fairness was engaged.

It is also in my view of interest that Lightman J referred to “the decision-making process”. Thus although the power to consent to an order transferring a restricted patient to a medium security hospital or granting him leave was conferred on the Secretary of State by statute in the form of Section 41 of the 1983 Act, the common law duty of fairness was held to apply at the earlier stage of the supply of material to and the deliberations and conclusions of the Board as well as to the supply of material to and decision of the Secretary of State. No distinction was made as regards the requirements of the duty of fairness as between the procedures adopted by respectively the Board and the Secretary of State by reason of the fact that it was only the Secretary of State whose decision whether to consent to a transfer to medium security was made in the exercise of the statutory power conferred by Section 41 of the 1983 Act.

Although the Board had no express statutory power to decide or consent to transfer the restricted patient, the reality was that its decision was an integral part of the decision making process which led to the exercise by the Secretary of State of the statutory power. It was no bar to the application to the report prepared for that Board and any new information before it on a relevant point of a common law duty of fairness to make at least its gist available to the patient that the Board’s conclusions did not constitute the formal exercise of the statutory power to transfer or consent thereto. Nor was that a bar to a requirement to allow the patient an opportunity to make written representations to the Board in response to such material before the Board reached a conclusion on it advice to the Secretary of State and to give a copy of that advice to the patient.

There is in my judgment an obvious parallel between the role of the Board in that case and the role of the Broadmoor Admissions Panel in this case. In both cases the statutory power to authorise or consent to transfer was conferred on a different person (the referring hospital in this case, the Secretary of State in that case). The reality in both cases however was that the role of the Board and the Admissions Panel was central to the decision as to how the statutory power should be exercised. Indeed the decision of the Admissions Panel was more important than that of the Board, which was limited to an advisory capacity, whereas the decision of the Admissions Panel to admit the Claimant constituted the de facto decision that he should be transferred from the referring hospital, which in reality had no further substantive decision to make once it was informed of the decision of the Admissions Panel to approve its request to agree to admit the Claimant.

This reality was further reflected by the fact that on the previous occasion when Stockton Hall referred the claimant to Broadmoor with a view to his admission it was Broadmoor who declined the request. On both occasions it was Stockton Hall which asked for the Claimant to be admitted to Broadmoor and Broadmoor which made the decision whether he should be admitted. On both occasions it was that decision which in effect determined the decision whether the Claimant should be transferred from a medium security hospital to a high security one. Whatever view Stockton Hall took as to the desirability of a transfer it was powerless to implement it without the consent of Broadmoor, not least because under Regulation 7 of the Mental Health (Hospital, Guardianship and Treatment (England) Regulations 2008 its power to authorise his transfer was conditional upon it being satisfied that arrangements had been made for the admission of the Claimant to Broadmoor within a period of 28 days beginning with the date of the authority for transfer.

This reality is reflected in the section of the Broadmoor Operational Policy dealing with appeals from decisions of the Admissions Panel to the Appeal Panel. The referring agency (in this case the medium security hospital) has the right to appeal to the Appeal Panel if it is not satisfied with the final decision of the Admissions Panel. Paragraph 8.4 states that unless new information is subsequently provided the decision of the Appeals Panel will be final and Broadmoor expects medium secure units to abide by the decision of the Appeals Panel.

In my judgment when considering a matter as important as whether a common law duty of fairness arises or is engaged it is to the substance rather than the form that the court must look.

The matter can be tested this way. Let it be supposed that a decision whether to transfer a patient from a medium to a high security hospital were held to satisfy criteria which would in principle engage the common law duty to act fairly. Thus let it be supposed that it were held to be a decision taken by a public body which vitally affected the patient’s future because of the potential adverse consequences in terms both of increased restrictions and delay in ultimate discharge and that there were no overriding policy considerations against the imposition of a duty to act fairly. Let it be further supposed that it were held that the procedure adopted by the high security hospital for considering the request from the medium security hospital to admit the patient was materially unfair. Would it be an answer to a claim by the patient that (a) the decision taken by the high security hospital, although unfair, was not amenable to challenge because it was not taken pursuant to a statutory power to transfer and (b) the decision taken by the medium security hospital to authorise the transfer was not challengeable because, although taken pursuant to a statutory power, it was not procedurally unfair and was not infected by the unfairness of the procedure adopted by the high security hospital? In my judgment the answer is no. The law would not countenance such an outcome which would represent a triumph of form over substance.

In my judgment the law does not compel such an outcome. First I do not consider that I am bound by authority to hold that it is a condition precedent for the engagement of a common law duty to act fairly that the decision under challenge was itself taken pursuant to a power or duty conferred on the decision maker by statute. To the contrary I have referred to cases which have proceeded on the basis that there is no such condition precedent.

Second in my judgment the court is entitled and indeed bound to look at the decision making process as a whole and in the round, as Lightman J did in ex parte Harry.

Third if and in so far as it is necessary to look to the form and to identify a duty or power derived from statue by which a common law duty of fairness is engaged it could be said that in respect of crucial issues on which the decision whether the Claimant should be transferred turned Stockton Hall chose to rely on assessments made by Broadmoor and that part of its duty to act fairly required it to ensure and satisfy itself that Broadmoor’s procedures for making those assessments were fair. Moreover it could also be said that, as the formal taker of the decision whether to transfer the Claimant under its powers under Section 19 of the 1983 Act and Regulation 7 of the Mental Health(Hospital, Guardianship and Treatment (England) Regulations 2008 the managers of Stockton Hall had a duty, if they chose to request Broadmoor to consider whether the Claimant was suitable for admission to a high security hospital, to act fairly both in ensuring that Broadmoor acted fairly in considering and reaching a conclusion on that question and in itself considering whether it was safe and appropriate to rely on Broadmoor’s conclusion. There is in addition the fact that the Broadmoor Admissions Panel in considering whether to accept the Claimant for admission was a public body exercising a public function which, as the Defendant accepted, it had to discharge properly and moreover was doing so pursuant to the Defendant’s broad statutory powers to provide high security psychiatric services under paragraph 3(2)(b) of the West London Mental Health National Health Service Trust (Establishment) Order 2000, the Defendant having been established as a Trust under that Order pursuant to the power conferred on the Secretary of State by s 25 of the National Health Service Act 2007 to establish bodies called NHS Trusts to provide goods and services for the purposes of the health service

It could also be said that as part of the process of deciding whether to exercise its statutory power to authorise the Claimant’s transfer Stockton Hall had a duty to act fairly at the initial stage of deciding whether the circumstances justified requesting Broadmoor to admit the Claimant. In so far as that decision turned on an assessment as to the risk posed by the Claimant it too was under a duty to adopt procedures that met the requirements of the common law duty of fairness in making that assessment.

There are undoubtedly features of the decision whether to transfer a patient from medium to high security which suggest the need for great caution in approaching the questions whether and what duties of fairness are engaged.

First there is the consideration emphasised by the Court of Appeal in ex parte Pickering that the choice of regime for a person who is restricted, and in particular, the identification of the most suitable place in which to detain him, are pre-eminently matters for the advice of doctors. However the statement in that case that where decisions made in good faith were based on such advice the Court would interfere only in exceptional circumstances was made in the context of a transfer between high security hospitals which did not involve the adverse consequences to the patient which in my judgment result from a transfer from a medium security hospital.

Nonetheless it is undoubtedly a very important consideration that central to any consideration as to whether a patient should be transferred from medium to high security is an expert medical evaluation of the patient. The Broadmoor assessing consultant is required for example to include as part of his opinion and recommendations in the assessment report prepared for the Admissions Panel a psychiatric diagnosis. In that regard there is in my judgment a material distinction between a decision whether to transfer a patient to a high security hospital and for example a decision whether a prisoner should be classified as Category A or B or as a High or Exceptional Escape Risk rather than a Standard Escape Risk.

On the other hand it is also the case that, in common with decisions as to which category or escape risk classification a prisoner should be allocated, central to a decision as to whether a patient should be transferred from medium to high security is an assessment of risk. Indeed the sole purpose of such a transfer is to protect others from the risk of harm. In the case of a patient such a risk, if it exists, is likely to (but may not necessarily) derive from or be associated with some aspect of his mental state and/or condition. It is for that reason that it involves expert medical evaluation.

Part of such an evaluation may not depend on an assessment of inferences to be drawn from the factual history of the patient’s past and in particular his recent past. But part of it may. The extent to which, if at all, such an assessment is liable to play a significant part in the evaluation is likely to vary from case to case. There may be cases where the relevant facts are either not in dispute or incapable of being disputed in that they are a matter of public record. In such cases there may be little or no scope for any input beyond that of expert medical evaluation and clinical opinion.

Undoubtedly however there will be cases, perhaps many cases, where a risk assessment and a medical evaluation may be capable of being materially influenced by an assessment of inferences to be drawn from the factual history of the patient’s past. It will be remembered that the Broadmoor Admission Guidelines provide that before admission to Broadmoor can be contemplated, in addition to a mental disorder, among the behaviours one or more of which must be present are evidence of serious planned or unprovoked assaults on others, evidence of the planned use of weapons or attempts to make or conceal weapons and evidence of other incidents. Indeed the only qualifying behaviour which is not based on evidence of specific conduct is evidence of aggressive feelings. Thus there is often likely to be an important fact finding aspect to the process of risk assessment as well as medical evaluation. As a matter of common sense that is more often likely to arise in respect of the patient’s recent past because if more historic incidents or events were assessed as giving rise to a sufficient risk to justify a transfer to high security such a transfer would be likely to have taken place before.

In such a case it may well be that if the expert medical evaluation and/or the consideration of it by the Broadmoor Admissions Panel (or its equivalent in the other high security hospitals) is influenced by or proceeds on the basis of an incorrect understanding of material facts in the patient’s past, especially if they relate to incidents or alleged incidents which have caused the medium security hospital to refer the patient for admission to the high security hospital, the medical evaluation and/or the consideration of it by the Panel may be flawed or mistaken and result in a risk assessment (and consequent decisions by the Panel to admit the patient and by the referring hospital to authorise his transfer) which would not be made if the patient had the opportunity to seek to prove that the facts were not as alleged or that they have been misinterpreted or misunderstood or given undue weight.

Take an extreme hypothetical example. Suppose that a patient is falsely accused by another patient or member of staff of having committed or threatened an act of serious violence against another patient or member of staff. Suppose further that the patient has a history of violence and is reclusive or inarticulate and has been selected by the false accuser for that reason or because of a grudge or out of malice. If true the allegation might well justify transfer to high security because the patient would constitute a serious risk of harm to others. But given that it is untrue, if the patient is transferred the adverse consequences in terms of restrictions and delay to ultimate release would serve no purpose and would be entirely unjustified.

There is, as it seems to me, in such a case a parallel with the categorisation of prisoners either as between A and B or as to escape risk classification. In both cases there is an obvious and important policy reason for making particular arrangements designed to protect the public or individuals from the risk of harm if allegations against a patient or prisoner are true, but not necessarily if they are not. The possibility of the risk is not, in my judgment, in law a sufficient reason for depriving the prisoner or the patient of the right to a fair procedure by which at an appropriate time the truth or otherwise of allegations may be properly tested or contextualised, or indeed, in my judgment, by which representations may be made as to the extent of any risk and the appropriate balance between any risk on the one hand and the interests of the prisoner or the patient on the other.

The possibility of the risk of harm may affect the extent and in particular the timing of the prisoner’s procedural rights, but it does not mean that they do not exist (see ex parte Duggan, MacAvoy, Lord, Allen, Ali and Abdullah). Given the parallel between the adverse consequences to a patient in the event of a decision to transfer him to a high security hospital, in my judgment the same principle should apply in the case of the patient as has been held to apply to a prisoner.

The danger in such a case of adverse consequences to a patient which would be neither justified nor necessary for the protection of others from risk demonstrates why, as it seems to me, there are strong arguments in favour of the proposition that the decision making process must be subject to a duty to act fairly. To adopt the language used in some of the authorities to which I have referred, in my judgment decisions to transfer a patient to a high security hospital from a medium security one and to admit him or her to a high security one have potentially adverse consequences for the patient. The decisions are likely to result in some materially more restrictive conditions (and may result in others) and to delay his or her ultimate discharge from detention under the 1983 Act. In the latter regard they may bear no less directly on the liberty of the patient than decisions to allocate Category A status. In the former regard they may have similar effects on the conditions of detention as decisions both as to Category A statues and to ERC. They may be as serious to the patient as the categorisation decisions are to the prisoner and liable to have a similar impact on him or her. They are made in the exercise of a public function which affects the liberty and to a degree the status of the subject. It is not without interest that Broadmoor’s own Admission Guidelines state that “it is an unacceptable infringement of a patient’s rights to detain them in a higher level of security than they require.”

Looked at in terms of practical results it could be said that there is a dividing line on one side of which are decisions to allocate category A or B status or escape risk classification (ex parte Duggan, MacAvoy, Allen, Ali and Abdullah) and on the other are decisions whether to confine a prisoner to cellular confinement (ex parte Hague and ex parte King). In reaching this conclusion I am conscious that the practical result is to place a decision to transfer a patient from medium to high security on the ex parte Duggan side of the line.

For the reasons set out earlier I do not consider that I am constrained by the decisions in ex parte Hague and ex parte King to conclude that the decision under challenge in this case does not engage a common law duty to act fairly. Those cases did not decide that decisions whether to confine a prisoner to cellular confinement do not attract a duty to act fairly. They decided that the requirements of fairness in that situation are in practice more limited than in decisions as to categorisation. In any event in my judgment they are distinguishable in that the effects of the potential adverse consequences for the prisoner are far more limited than in the case of transfer from a medium to a high security hospital and, as identified by Taylor LJ, there are other safeguards for the prisoner even without a right to be given reasons for the decision.

What fairness requires is of course a different question. In answering that question no less than the first both authority and principle show that regard must be had to and, in so far as they are in conflict, a balance struck between public policy and practicality on the one hand and the interests of the patient on the other.

As emphasised by Lord Mustill in ex parte Doody and other judges in later cases the principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects. One example of that general principle is to be found in the very next proposition he laid down, namely that although fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf that may but need not always be before the decision is taken with a view to producing a favourable result. It may in some contexts be confined to an opportunity to make representations after the decision is taken, with a view to procuring its modification.

In the context of categorisation of prisoners it has been held that fairness normally requires that the gist, but not the whole, of the relevant report should be disclosed to the prisoner at the first and all subsequent annual reviews of his category, but not before his initial categorisation, together with the reasons for his existing category (see ex parte Duggan and MacAvoy). That represents a balance between policy considerations and the interests of the prisoner and reflects the practical considerations which must apply to the proper running of a prison, including the considerable difficulty within the prison service in the managing of Category A prisoners (per Lord Woolf in MacAvoy).

In ex parte Duggan the combination of the fact that speedy categorisation of those who may be dangerous is clearly in the public interest and the fact that, because those placed in category A will almost always, if not inevitably, be serving substantial sentences, the impact of initial categorisation is unlikely materially to affect their prospects of release led Rose LJ to conclude that he could see no reason why initial categorisation procedures on admission to prison should be subject to the same requirements as those which are appropriate later.

In MacAvoy Lord Woolf M.R. did not consider that a person in the position of the applicant should receive either the actual information or the names of those providing the information. That no doubt reflected the same policy reasons which led the Court of Appeal in ex parte Hague and ex parte King to reach the more far reaching conclusion that prisoners faced with the prospect of segregation were not only not entitled as a matter of course to make representations before the decision (because of the frequent need to make urgent decisions in the interest of maintaining good order) but also not entitled in all cases to be told the reasons afterwards. There may be reasons why it would compromise security to reveal the source of information taken into account. There may also be an urgent need to take decisions quickly to prevent escape.

In ex parte Hague Taylor LJ stated that giving reasons would often require unwise disclosure of information which could reveal to prisoners the extent of the governor’s knowledge about their activities and reveal the source of such information thereby putting informants at risk and could cause an immediate escalation of trouble. In ex parte King Kay LJ explaining why the law could not extend to prisoners faced with the possibility of segregation the same procedural protection enjoyed by those on the threshold of a loss of liberty such as controlees referred to that statement and also endorsed the statement of Irwin J at first instance that giving information of the sort that may lead to segregation being contemplated is bound to carry considerable risks on frequent occasions and that prison authorities are bound to receive the relevant information but unable to reveal the source.

The difference between the approach of the courts as between categorisation cases and segregation cases is that in the latter it has been held that the risk of disclosing sources of information known to the prison authorities is such that as a matter of policy they should not be required in all cases to inform the prisoner of the reasons for segregation even after the decision is made to enable him or her to challenge it retrospectively, whereas in the former it has been held that, once the risks to security of disclosing to the prisoner information at the initial categorisation stage have passed, it is right that he should be armed at least with the gist of the information and in an appropriate case with the actual report in which it is contained to enable him to challenge it at subsequent reviews.

Lord Woolf M.R. in MacAvoy also rejected a suggestion that the prison services should normally disclose all the material relied on and, whenever it was appropriate to do so, seek public immunity, as too formal for the sort of administrative decision involved in categorisation. On the other hand he added that part of the reason why providing to the prisoner only the gist of the information before the decision maker was a perfectly satisfactory procedure was that where appropriate the Secretary of State or those responsible for the review were prepared to reconsider, in the circumstances of any particular case, whether additional information should be made available.

What then are the relevant policy considerations in the present context? Plainly where the managers of a medium security hospital consider that there is an immediate or imminent threat to staff or other patients there may be a need to take a decision very quickly. In such a situation in my judgment the requirements of fairness must accommodate the interests of safety which must in the first instance be paramount. However it does not in my view necessarily follow that for that reason the opportunities which should be afforded to the patient to challenge the decision should in every case be confined to procedures available only after the decision has been made and implemented.

As mentioned above Mr Hyam relied on the assertion by Dr Murray in his first witness statement that the process of transfer is an administrative one which relies on prompt assessment by experienced professionals of the necessary level of security which a patient needs in “real time”. However the facts of this particular case suggest that this need for promptness is not necessarily a universal phenomenon.

The incident which led Stockton Hall to request Broadmoor to admit the Claimant took place on 31 July 2010. Dr Vandenabeele wrote his letter requesting admission on 4 August 2010. Dr Sengupta visited the Claimant at Stockton Hall and met members of staff there on 17 August 2010. The written assessment and recommendation to the Broadmoor Admission Panel prepared by Dr Sengupta was dated 23 August 2010. The decision of the Broadmoor Panel to support the Claimant’s admission appears to have been taken on 2 September 2010, although the actual decision by Broadmoor to admit him appears to have been taken on 15 September 2010 as described in Dr Vas’ note of that date, and, as described in the letter dated 17 September 2010 from the Panel chairman to Dr Vandenabeele in which he said that the Panel had unanimously supported the provision of a bed in high security for the Claimant and that following discussions with Broadmoor Personality Disorder service it had been agreed that a bed should be offered in the main hospital in the first instance. That letter was the first occasion on which Stockton Hall was notified of Broadmoor’s decision to admit the Claimant. By this time nearly seven weeks had passed since the initial incident which triggered the request for admission.

The implementation of the decision was held up for a short while by the Claimant’s application for an interlocutory injunction which was granted and then withdrawn by consent shortly afterwards. However apart from that application it appears from Dr Murray’s letter dated 16 September 2010 to Ms Jolly that he had spoken that day to Dr Vandenabeele who confirmed that in his view the Claimant’s transfer to Broadmoor should wait no more than one week since the situation whereby he anticipated that he was to be transferred to Broadmoor shortly and had nothing to lose, was inherently clinically high risk. He said that Broadmoor proposed to admit the Claimant early in the week beginning 4 October, a further two and a half weeks after Stockton Hall was notified of Broadmoor’s decision, and two months after the original request from Stockton Hall.

No doubt the time taken by Broadmoor to decide whether to admit a patient referred from a medium security hospital varies form case to case, but it is of interest that the Admissions Panel Operational Policy lays down a time scale of four weeks from receipt of a referral to the communication of the decision, although if further information is required from the referrer or another source the time scale does not start until that information is available. In addition in the event of an appeal to the Admissions Appeal Panel by the referring hospital against a refusal by the Admissions Panel to admit the patient there may be a further delay of up to six weeks from the date of referral of the appeal. The Policy also states that patients should not have to wait longer than three months from the date of acceptance, presumably a reference to the actual date of admission which on that basis could be nearly four months after referral, or five and a half months in the event of an appeal.

The Policy also make provision for accelerated decision making in what it describes as the rare occasion when a decision has to be made quickly regarding an emergency referral and there is no time to convene a Panel, in which event the Lead Clinician should consult Panel colleagues by telephone if possible. Should a decision to admit be made in the absence of a Panel discussion, the case will be discussed at the next scheduled Panel.

It is against that background that arguments as to incompatibility between the demands of urgency in the interest of safety and affording the patient opportunities to influence the decision before it is made must be considered. Mr Squires pointed out that within two days of receiving Dr Sengupta’s assessment report on 20 September 2010 Ms Jolly had been able to write a detailed challenge to the Panel’s decision based on a critique of that report, the inference being that if it had been made available sooner there would have been sufficient time for submissions to be made before the Panel met or at least before a final decision was communicated to Stockton Hall.

On the other hand it might have taken Ms Jolly longer to make representations based on a review of all the hundred or so documents which were before the Panel and it cannot be ruled out that if they had been sent to her when they were first assembled for the Panel she would not have been able to make effective representations to the panel for it to take into account before it reached its decision without the Panel’s meeting having to be delayed beyond 2 September 2010. Of course there may be situations in which either the danger perceived by the medical staff and/or managers at the medium security hospital are more immediate, or the facilities and/or expert staff available to contain it pending a transfer to a high security hospital are less effective than appears to have been the case on this occasion.

It is instructive in this context to refer to observations of Maurice Kay LJ in ex parte King in which he identified part of his reason for concluding that decisions as to cellular confinement or segregation do not engage Article 6. He held that:

“Prison or YOI governors have the responsibility of maintaining good order and discipline in a complex and potentially combustible setting. They have to make urgent decisions about such matters as segregation based on their experience, expertise and judgment. They do so, not just in a binary mode as between themselves and an individual prisoner. They are acting in the interests of the security of the institution as a whole. Sometimes they may have to make a decision which has an immediate restricting effect on the whole or a large part of the institution-for example, the immediate “lockdown” of an entire wing on receipt of apparently credible information about a planned breakout. Such urgent matters are not susceptible to a judicialisation of the decision-making process. In the present cases it would be quite unrealistic to require the initial decision to segregate to be taken by “ an independent and impartial tribunal established by law” – presumably an independent adjudicator akin to “additional days” procedure(see paragraph 3,above).The need for action is often immediate. The cases of Bourgass and Hussain are paradigm examples. It is true that when the SRB stage is reached, whilst initially the timeline is short, the urgency is less extreme. However it seems to me that the review is one best entrusted to those with the necessary experience and expertise as an exercise of collective, professional discretion, with built-in safeguards, albeit falling short of Article 6 standards. Amenability to judicial review is appropriate protection.”(paragraph 44).

Some but not all of the features identified by Maurice Kay LJ do or may apply in categorisation cases. Thus when considering whether a prisoner should be Category A or B or the level of escape risk classification the decision-makers may not be acting in the interests of other prisoners they are acting also in the interest of the protection of the general public who may be harmed in the event of an escape and arguably also of prison officers who may be injured in an attempted escape. It is also the case that the decision is taken by those with the necessary experience and expertise, albeit arguably not as an exercise of professional discretion. On first admission to prison there may often be an as yet un-assessed risk of escape. But those features do not prevent the decision making process in categorisation cases from engaging the common law duty of fairness. Nor do they prevent that duty from requiring the authorities to give the prisoner the gist of the relevant reports to enable him, after any initial security risk has passed, from challenging the decisions on subsequent reviews and doing so on a properly informed basis as to the grounds on which the decision has been taken. Indeed in an appropriate case the unedited report may be required to be made available (Williams and MacAvoy).

There are, as it seems, to me parallels in the present context. There was in this very case a need to effect an immediate lockdown of part of Stockton Hall in response to the incident which triggered the referral to Broadmoor. As it happens it appears that Stockton Hall was equipped and prepared to deal with the perceived security risks internally for some eight weeks pending the taking and implementation of the decision to transfer the Claimant to Broadmoor. Thus the immediate urgency of the need to respond to the security implications did not dictate the need for a decision to be taken at anything like the same urgency or the same speed as in some categorisation cases or indeed some segregation cases. Neither the urgency of the need to take an initial decision in some cases nor the appropriateness of the decision being taken by professional people with the necessary experience and expertise to assess not only the risk presented by a patient but whether no lesser degree of security will provide a reasonable safeguard to the public is in my judgment a reason why the decision making process should deprive the patient of any opportunity to challenge the decision.

It is in my judgment significant that in the same situation in Scotland the legislature has decided that neither of these features is incompatible with having a system which enables a patient to challenge a decision to transfer him or her from a medium security hospital to a state hospital in some cases before the decision is made in others afterwards. Where notice is given to the patient before the proposed transfer they have 12 weeks in which to appeal to the Tribunal and if the transfer has not yet taken place the lodging of the appeal acts as an automatic stay of the decision, subject to the discretion of the Tribunal to order the transfer if it is satisfied that the patient should be transferred pending appeal. Where notice is given to the patient on or after the transfer or no notice is given they have 12 weeks from the transfer to appeal. The Tribunal has power to order that the proposed transfer not take place or, as the case may be, that the patient be returned to the hospital from which the patient was transferred if it is not satisfied that the patient requires to be detained under conditions of special security or that such conditions can be provided only in a state hospital.

Whether the establishment of a similar system is a necessary condition for making the decision making process compliant with Article 6 is a question that arises under the Claimant’s Article 6 claim. In the present context what is in my view of interest is that it has been considered in Scotland that, whatever may be the policy considerations in favour of decisions to transfer being taken in the first instance by experienced professionals in all cases and urgently in some cases, they are not incompatible with or alternatively are outweighed by the need to give the patient an opportunity to challenge the decision either before or after it is. It is also significant that it is considered that even in cases of urgency it is not necessary to have an automatic practice of deferring the challenge until after the transfer, it being a matter for the Tribunal to decide if it should be deferred. This would seem to suggest that the problems associated with the need to effect an immediate or urgent transfer may be far from universal, a conclusion which does not strike me as inconsistent either with the timetable laid out in the Broadmoor Policy or with the chronology in this case.

I am also struck by the evidence in this case of the nature of the internal review hearings at Stockton Hall to review whether the Claimant continued to satisfy the criteria for any kind of detention under the 1983 Act and also the hearings of the First Tier Tribunal to consider his application to be transferred to a medium hospital nearer his family. They suggest that the logistics of affording patients who wish to challenge medical assessments reached by expert psychiatrists are capable of being organised within a hospital without undue disruption or security concerns. Patients are given access to their medical records and are able to attend with solicitors to make representations and to articulate their concerns.

Approaching this as a matter of principle and common sense without reference to authority I would start from the premise that a patient who does not consider that he or she satisfies the admissions criteria of Broadmoor (or one of the other high security hospitals) and who does not wish to be transferred from a medium security hospital should be afforded a reasonable opportunity to challenge a transfer decision. How and when that opportunity should be provided and what it should involve may well depend on the individual circumstances and the presence (and if so strength or weakness) or absence of countervailing policy considerations and may thus vary from case to case.

Thus for example there may be cases where neither the patient nor their representatives desires to challenge any factual allegations or findings made by the referring hospital or the assessing doctor from the high security hospital. Or there may be cases where a patient (or their representatives) wishes to make written representations as to the absence of risk or the adequacy of the facilities at the medium security hospital to deal with risk, but has no desire to make oral representations or to attend an oral hearing to give a factual account of events. There may be cases where a patient is content to challenge a transfer after it has been made.

From the perspective of the two hospitals concerned there may be little or no objection to providing to the patient or his representatives the referral letter which sets out the reasons why transfer is thought necessary including any factual findings or allegations and/or the assessment report prepared by the putative receiving hospital. In this case for example Dr Murray sent Ms Jolly (albeit only after the decision to transfer was made and only in response to a request) a copy of Dr. Sengupta’s report which identified the factual basis on which Stockton Hall had referred the Claimant and with which Ms Jolly took issue. Indeed it was stamped with a statement that Dr Sengupta had no objection to his report being seen by, among others, the Claimant or his representative or other clinicians assessing the Claimant for transfer, presumably including any experts appointed on behalf of the Claimant to challenge the proposed transfer.

Further as to timetable there may be cases where, even if, as in this case, there has been a dangerous incident requiring urgent risk containment measures such as an immediate lock down, the referring hospital is able to accommodate the patient for a period of several or even many weeks after the triggering incident pending a decision as to transfer being first made and then implemented. In such cases there may be no significant adverse effect on the requirements of safety if, before the decision is finalised and/or implemented the patient is afforded one or more of the following opportunities: disclosure of (a) the reason why transfer is desired or considered necessary or at least the gist of it, (b) the referral letter or at least the gist of it, (c) the assessment report or at least the gist of it, (d) the documents placed or to be placed before the Admissions Panel or at least the gist of them, the ability to make written or oral representations as to fact and/or risk, the ability to give a factual account.

At the other extreme there may be cases where the risk presented by a patient is considered to be so grave and immediate and/or the ability to contain it in conditions of medium security so inadequate that it is considered that one or more of the pre-decision or pre-transfer opportunities could not safely be provided. There may be cases where it is considered that disclosing the source of factual allegations may expose other patients or members of staff to danger.

On the other hand there may be many such cases where most or all of those opportunities could be made available to the patient after a decision to transfer has been made and/or implemented with a view to having it rescinded with no significant adverse effect on the requirements of safety There may also be cases where there is no factual challenge justifying the giving of an oral account either before or after transfer and no issues identified by the patient justifying the making of oral representations. Indeed there may be cases where neither the patient nor his or her advisers wish to challenge the transfer or to make written representations.

In addition it is in my judgment a relevant consideration that the logistics of providing some of these opportunities may come at a cost in terms of money but more particularly of the time of the doctors and other professionals involved which may adversely impact other needs in a service where resources are stretched thin and at a premium.

Practical considerations similar to some of those outlined above were considered by HH Judge Pelling QC in Ali and Blake J in Allen in the context of escape risk classification.

In Ali HH Judge Pelling QC held that it was not even arguable that fairness required that the Claimant be given a prior opportunity to answer the case to be put before the Defendant prior to him taking an initial ERC decision. His reason was that given by Blake J in Allen, with which he agreed, namely that a requirement to notify the prisoner before the measures are put in place of the basis on which it is assessed that there is a high or exceptional risk of escape would give rise to the very risk that the regime is designed to avert either initially or at a routine review. The defendant might have to act quickly on intelligence provided at very short notice and in circumstances where it may have been supplied from second or third hand sources in circumstances of great personal risk or where for other reasons confidentiality must be preserved.

On its face that reason is not necessarily applicable in the current context in all cases. The practical operational ramifications in terms of taking immediate steps to avoid a prisoner’s escape may require immediate action or at any rate action on a timescale which is incompatible with giving the prisoner an opportunity to make representations before they are put in place. Indeed the very act of forewarning the prisoner may crystallise the risk that is apprehended. While such a situation could arise in the current context the facts of this case demonstrate in my judgment that that need not always be so. Stockton Hall was able to put in place temporary high security measures for the period pending the decision making process and the implementation of the decision to transfer, which lasted respectively 6 or so weeks and over 8 weeks.

HH Judge Pelling QC also stated that he saw no need to distinguish between the urgent situation identified above and a decision to be taken following a routine six monthly review. However that proposition had not been argued before him and it is not with respect immediately apparent why, for example, in every case the act of giving the prisoner an opportunity to make representations at or before a six monthly review would compromise security or risk exposing informers to reprisals, particularly in light of the judge’s conclusion that a prisoner in the position of the claimant in that case must be made aware of the decision that has been taken and must be told the reasons for it in sufficient detail to enable him to decide whether a worthwhile challenge to the decision can be made (together with, arguably, the material relied on in reaching that decision to the extent that disclosure of it is not exempted by operation of section 29 (1) of the Data Protection Act 1998) as well as being given an opportunity reasonably soon after the decision has been taken to make representations with a view to it being modified.

In my judgment there are significant differences between the ERC situation and the current context both in terms of the practicalities for the decision takers and the impact on the claimant which would point towards adopting a more flexible approach to affording opportunities to challenge decisions to transfer before they are made and/or implemented in at least some cases. As to the former I have already made the point that there may be cases in which there is no conflict between the demands of ensuring safety and enabling a patient to make representations in advance of the decision being taken or at least implemented. The present case is in my view an example. As to the latter there is in my judgment some force in Mr Squires’ submission that in practice it may be more difficult to persuade people that a decision was wrongly taken and should be unscrambled than to persuade them not to take it in the first place. Some support for the submission is to be found in the observation of Jack J (albeit made in a different context) endorsed by the Court of Appeal in Secretary of State for the Home Department v SP [2004] EWCA Civ 1750.

“[All of the post-decision procedures], however, come after the order has been made and [the prisoner] has been transferred. It is the initial decision which is the most important step, and which an inmate would most like to have the opportunity to address. It is often the case in any situation involving a decision of an authority that once a decision has been made it is difficult to change it.”

In view of the practical problems associated with transfers from high to medium security hospitals identified in the evidence of Dr Davies and Ms Campbell there may also be delays which are unavoidable in implementing a decision to reverse a transfer. By contrast as I understand it an ERC decision does not necessarily involve the prisoner being moved from one prison to another.

As to the judge’s conclusion that in all ERC cases fairness requires that the prisoner be given an opportunity reasonably soon after the decision has been taken to make representations with a view to it being modified, in my judgment fairness requires no less in the current context if and in so far as there has not already been an opportunity to make representations before the decision was made and/or implemented. The reasons why that is required by fairness in an ERC case were spelled out by Blake J in the passage of his judgment in Allen which I have cited above and in my judgment they apply also in the present context.

Moreover there must be sufficiently detailed reasons to enable a patient (or his or her representative) to understand why the decision has been made and to decide whether a worthwhile challenge to it can be made. It is the essential first stage to enabling someone who is the victim of factual error or fabrication or irrationality to correct its effect. Again the present case is illustrative. The principal challenge sought to be made by Ms Jolly on behalf of the Claimant is based on the argument that the risk assessment was flawed by reason of a misstatement, incomplete statement and/or misinterpretation of the Claimant’s possession and hiding of weapons. I would add that the words in brackets above which I have added to Blake J’s formulation in Allen reflect an important feature of the present context which is different from that of prisoner categorisation. It is in the nature of detention under the 1983 Act that the mental condition and/or disorder of some persons so detained may be such as to make them unable easily or at all to make rational or sensible decisions as to the rights to which they are entitled without advice or assistance from (usually a legal) representative.

In relation to disclosure after the decision of material available to the decision maker HH Judge Pelling QC was not satisfied that fairness required that in every case the defendant should be required to carry out a review of the material considered for the purpose of informing a prisoner what was relied on that could be released (if anything). In many cases the decision together with reasons for it (if given in the sort of detail he mentioned) would be sufficient to show that a request for reconsideration would be pointless. Thus it would not be appropriate to require that in every case the defendant or his staff should have to review all the material considered in order to decide whether Section 29 (1) of the Data Protection Act applies to it or not. In his judgment the need for such an exercise could only arguably arise if a request is made for such material after a reasoned ERC decision has been delivered to the prisoner concerned. The need to consider whether fairness required such an exercise to be undertaken did not arise in that case and he preferred to express no concluded view which he considered should await a case with appropriate facts.

In principle it seems to me that a similar approach is appropriate in the present context, although the categories of potentially non-disclosable documents and the arguments for withholding disclosure may be different. It strikes a sensible balance between the undesirability of imposing on the relevant hospital authorities an administrative burden that in many cases may not be necessary to achieve fairness and the importance in some cases of seeing actual documents (or if appropriate the gist of their contents) where that is necessary either to enable a patient to decide whether the decision is challengeable or in order to support or make good a challenge.

This approach echoes that approved by Lord Woolf MR in MacAvoy who rejected the submission that in prison categorisation cases there should be routine disclosure of all material relied on by the decision taker subject to claiming public interest immunity where appropriate. However it is important to note that one of the reasons which led Lord Woolf to approve that approach was an apparent concession or undertaking on the part of the Secretary of State that, as he described it, where appropriate he or those responsible for the review was prepared to reconsider, in the circumstances of any particular case, whether additional information should be made available.

The critical principle underlying the scope of what is required is that articulated by Rose LJ in R v Secretary of State for Home Department ex parte Creamer and Scholey [1992] in a passage “wholly endorse[d]” by Lord Woolf M.R. in ex parte McAvoy at p. 798 C:

“A prisoner’s right to make representations is largely valueless unless he knows the case against him and secret, unchallengeable reports which may contain damaging inaccuracies and which result in continuing loss of liberty are, or should be, an anathema in a civilised, democratic society.” [Paragraphs 13 and 14].

As it seems to me whether the mischief there identified can be avoided by providing detailed reasons or whether it requires in addition the disclosure of additional documents or the gist of their contents beyond the referral and assessing reports may vary from case to case depending on the particular facts and circumstances. In some cases detailed reasons may suffice for that purpose, but not in all.

The approach approved by Lightman J in ex parte Harry was again not dissimilar save in the important respect that in that case he held that, in addition to being entitled to be given reasons for the Secretary of State’s decision, the requirements of procedural fairness entitled the patient to be told the gist of relevant information and to make written representations, both to the Advisory Board and to the Secretary of State, before the Board reached a conclusion as to its advice to the Secretary of State and before the Secretary of State reached any conclusions. In particular the patient was entitled to be told the gist of the report to the Advisory Board of the member who visited the hospital. There is in this latter point an obvious parallel with the report to the Broadmoor Admissions Panel of the consultant psychiatrist appointed by Broadmoor to assess the suitability of the patient who has been referred by the medium security hospital and also with the letter of referral from the medium security hospital.

However in relation to the timing of the right to make representations there is a material difference between the circumstances in ex parte Harry and those in the current context. In that case the patient was already in a high security hospital and the question was whether he should be transferred down a level to a medium security hospital. By definition there was thus no scope for any concerns that a right to make representations before as well as after the relevant decisions were made might interfere with the need to make quick decisions in the interest of dealing with any immediate or imminent risk of violence to the patient or others.

It will be recalled that Lightman J held that, although following Rose LJ in ex parte Duggan,the patient was only entitled to be told the gist of the relevant report, the detail required must depend on what (having regard to the importance of the issue at stake and of the contents of the documents in question on that issue) fairness required to enable the making of meaningful and focused representations. The Secretary of State was obliged to consider in each case whether a full and fair understanding of the gist of the report could be conveyed without production of the report itself and whether good administrative practice might also call for its production. Good administrative practice might call for the production of the document where that was necessary to avoid the risk of a legitimate sense of concern or grievance and there was no countervailing consideration of any weight and no legitimate reason for wishing to withhold it. Lightman J did not spell out what would happen if the patient took issue with the Secretary of State’s views on any of these matters, but I take the inference to be that they would be challengeable by way of judicial review by reference to the normal Wednesbury test.

There are in my judgment no compelling considerations of public policy or logistics which would justify not affording to a patient who wishes to challenge after a decision to transfer him or her from medium to high security has been implemented the procedural entitlements (mutatis mutandis) as Lightman J held fairness required to be afforded in advance to a patient who wished to challenge a decision not to transfer him or her in the opposite direction.

The question arises whether there are such compelling considerations which would justify not affording to a patient the same pre decision entitlements. In my judgment the answer to that question is equivocal.

There may be cases in which the urgency of the need to make and implement a decision are such that the delay involved in affording the patient some or all of the pre-decision opportunities approved by Lightman J would compromise the overriding objective of protecting others from the risk of harm. In such cases in my judgment the priority must be the avoiding of harm.

There may equally be cases where there would be no such compromise. In this case for example Dr Murray was content to send Ms Jolly copies of the letter from Dr Das which set out Broadmoor’s decision to admit the Claimant and the reasons for the decision, Dr Sengupta’s assessment report to the Broadmoor Admissions Panel and all 100 or so documents which were before the Panel. It is true that they were only sent after the decision was made (but long enough in advance of it being implemented to enable Ms Jolly to make detailed written representations making the principal factual challenge to the decision which is still relied on). But it does not appear that that was the result either of any concerns as to maintaining secrecy in the interests of security or of any urgency in the need to transfer the Claimant to Broadmoor. There may be some suggestion that the delay in sending documents was associated with the request by Broadmoor for a form to be signed authorising disclosure of the Claimant’s medical files and agreeing to pay copying charges.

There seems no reason on the evidence before me why it would not have been possible for Dr Sengupta’s report and Dr Vandenabeele’s referral letter, or the gist of them, to have been sent to Ms Jolly before the decision to support admission was taken by the Admissions Panel on 2 September 2010 and in any event before the decision to admit was taken on 15 September 2010. In that event it might well have been possible for Ms Jolly to have made written representations before the Admissions Panel met on 2 September 2010 or sufficiently soon thereafter for it to have reconvened in a meeting, by phone or electronically to consider them before notifying Stockton Hall of its final decision.

The question arises as to whether the common law duty of fairness requires the patient to be afforded an opportunity to attend an oral hearing in order to give a factual account and/or to make representations. In considering that question it is in my view helpful to start with the approach which The House of Lords in West held should be followed in the context of decisions to recall prisoners from licence and ask whether there are factors which would make it appropriate or inappropriate in the current context. The approach was set out in the extracts from the speeches of Lords Bingham, Slynn and Hope cited above.

In my judgment there are several aspects of the current context which point to it being appropriate. As in the situation considered in West there may be cases where no useful purpose would be served by an oral hearing and an automatic rule which required a hearing in every case would impose an unjustified burden of cost and time on the relevant authorities and in this case on the hard pressed members of the Admissions Panel, the assessing consultant and the referring doctor. Equally there may be cases where there are issues of fact, where explanations are put forward to justify actions or where the assessment of the Broadmoor consultant or the referring consultant or both need further probing. Even if important facts are not in dispute, they may be open to explanation or mitigation or may lose some of their significance in the light of other new facts. While the panel’s task certainly is to assess risk, it might well be greatly assisted (one way or the other) by exposure to the patient or those who have dealt with him or her.

Are there distinguishing features which, despite these similarities, compel the conclusion that a different approach should be followed? Clearly one important factor is that although the decision of the Admission Panel requires it to assess the degree of risk of harm posed by the patient part of that assessment does or may involve a clinical assessment or diagnosis of the patient’s mental state and/or illness. Dr Murray described it as a clinical decision taken by an experienced group of clinical staff who have long experience in assessing referrals and the Broadmoor Policy specifies that the assessing consultant must include a diagnosis in his report. In addition there may be, unlike retrospective decisions of the Parole Board which are taken after the prisoner has been recalled to prison from licence, urgent need for a transfer which would be incompatible with an oral hearing.

In my judgment these features do not compel the conclusion that a different approach should be followed to that laid down in West. That approach is sufficiently flexible to accommodate the urgent case where an oral hearing before the decision is made would be impractical or compromise safety and the straightforward case where no useful purpose would be served by holding one. As to the fact that the decision involves an element of clinical assessment it does not follow for that reason that the assessment may not depend on or be materially influenced by an account or assessment of facts which are disputed as untrue, inaccurate misleading or exaggerated. Nor does it follow that the assessment might not be altered by exposure to the patient or the questioning of those who have dealt with him, although where there are no factual disputes that may be the exception rather than the rule. Even where the patient’s challenge is not to facts but to the clinical assessment and is supported by a conflicting expert report, it may be that exposure to the expert might alter the assessment. It is not without significance that the fact that the decision to continue to detain a patient under the 1983 Act involves an element of clinical assessment has not been considered incompatible with conferring on the patient the right to challenge it at a Tribunal with all the procedural rights associated with such a challenge.

The overriding principle identified by Lord Bingham that the prisoner should have the benefit of a procedure which fairly reflects on the facts of his particular case the importance of what is at stake for him as for society, is in my judgment applicable to a patient who wishes to challenge transfer to a high security hospital.

Applying that principle and the approach prescribed by their Lordships in the three cited passages, I would conclude that the current blanket ban by Broadmoor on any attendance at an oral hearing by the patient or his representative for the purpose of challenging facts or making representations does not comply with the minimum requirements of the common law duty of fairness.

Paragraph 6.10 of the Operational Policy states: “Requests by persons to attend the Panel as observers should be made to the Admissions Panel Secretary. Persons observing the Panel will not be expected to contribute to the discussion but may raise questions once a decision has been reached.” The key word is “observer” and as the second sentence makes clear this provision is not intended to enable a patient or their representative to challenge facts or make representations or otherwise seek to influence the outcome of the decision making process. Any contribution is confined to asking questions after the decision has been made.

That was confirmed in this case when Ms Jolly’s request pursuant to 6.10 to attend the Panel meeting which would decide whether to admit the Claimant was met with the response from Dr Murray that paragraph 6.10 was primarily intended for trainees to observe the internal process and that it had never been Broadmoor practice to allow attendance by referring agents, either doctors or others, at the decision making meeting in respect of their particular case. However if she wished to attend an admissions panel to observe the general principles that would be a matter for negotiation and subject to the appropriate considerations regarding the confidentiality of the cases to be discussed.

The clear inference was that paragraph 6.10 was not interpreted by Broadmoor as affording a patient or his or her representative an opportunity to attend an oral hearing whether for the purpose of challenging facts or making representations, still less as entitling them to such an opportunity. She was subsequently informed that her request to attend the admissions Panel meeting even as an observer had been declined by Dr Murray. Again the inference was that the request had been turned down out of hand as a matter of automatic policy and not as a result of a consideration of the Claimant’s particular circumstances or the nature of his proposed challenge to the proposed transfer. Again this was confirmed by Dr Murray who said in his first witness statement that neither the assessing doctor nor the patient’s solicitor or family attends the meeting of the Panel. Nor was there any indication in response to Ms Jolly’s request for an oral hearing in her letter dated 22 September 2010 that the Defendant was prepared to consider whether such a hearing was or might be appropriate having regard to the issues raised by her on behalf of the Claimant.

Adapting Lord Hope’s conclusion to the present context I would conclude that the common law test of procedural fairness requires Broadmoor to re-examine its approach to the issue of oral hearings. A screening system should be put in place which identifies those cases where the patient seeks to challenge the truth or accuracy of any allegations or findings which led to the referral, or seeks to provide an explanation for them which was not taken into account or was disputed when the request for admission to the high security hospital was made. Consideration should then be given to the question whether it is necessary to resolve those issues before a final decision is made as to whether the patient should be admitted and transferred.

Lord Hope went on to hold that if it is necessary to resolve those issues before a final decision is made as to whether or not the prisoner is suitable for release an oral hearing should be the norm rather than the exception. However, unlike the present context, the context under review in that case did not involve the need to take into account the need for some decisions to be taken urgently in the interests of protecting people from the risk of harm. In order to reflect that important consideration Lord Hope’s conclusion should in my judgment be adapted in the current context such that if it is considered necessary to resolve the issues to which I have referred it should be the norm rather than the exception that there should be an oral hearing before a final decision is made as to whether the patient meets the criteria for admission to the high security hospital, and the hearing should take place before the patient is transferred unless that is incompatible with the need to protect persons from harm, in which case it should take place as soon as reasonably practicable after the patient has been transferred.

I would also respectfully adapt Lord Slynn’s conclusion. If there is doubt whether the matter can fairly be dealt with on paper the high security hospital should be predisposed in favour of an oral hearing and in any event the patient and his or her representative should be told that an oral hearing may be possible although it is not automatic. If having been told this the patient clearly says that he or she does not want an oral hearing there need not be one unless the high security hospital itself feels exceptionally that fairness requires one.

Again I would emphasise that, whatever may be the case in the context of recall from licence, there is in my view no reason to suppose that in practice this approach is likely to lead to a large number of oral hearings, because there is no reason to suppose that there will be many cases in which there are material factual disputes. In any event the overall number of referrals to Broadmoor from medium security hospitals is itself on the evidence not enormous. Dr Murray stated that the overall number of referrals is about 100 a year, but that includes referrals from all sources, including persons held on remand awaiting trial, prisoners serving a prison sentence and patients presenting problems in less secure services which it is to be inferred are not confined to medium security hospitals. Moreover of those about 50 are not accepted on first application even without the availability of oral hearings. Dr Vandenabeele stated in his witness statement that transfers from medium security to high security are relatively rare occurrences. He estimated having undertaken such an activity on some half a dozen occasions in his professional career since 2006. As appears below Broadmoor already undertakes six monthly care programme (“CPA”) approach meeting at which the patient may make representations as to why high security care is no longer required.

Of course the logistics and impact on resources are matters of importance. But ultimately, as has been said on more than one occasion, where the liberty of the subject is at stake (even where, as here, it is only indirectly at stake) in my judgment considerations of convenience must in the event of irreconcilable conflict yield to the requirements of fairness.

I should add that in reaching the conclusions to which I have come as to the existence and scope of the requirements of the common law duty of fairness I have taken into account the fact that, after he or she has been transferred, it is open to a patient to approach the clinical staff and/or the managers at the high security hospital and seek to persuade them that he or she should be transferred back to a medium security hospital and/or to make an application to the Mental Health Tribunal with a view to seeking a non binding recommendation to that effect. In my judgment neither of those facts constitutes a sufficiently robust alternative remedy to justify a conclusion that the initial decision to transfer the patient to a high security hospital does not engage a common law duty of fairness or that its requirements are of a lesser scope than I find them to be.

First it is inherent in all of these alternatives that they are confined to seeking to achieve a new decision that the patient should be transferred to a medium security hospital. They are incapable of preventing an initial decision to transfer the patient from being taken or implemented or resulting in it being cancelled or reversed. This is not just a technical or semantic difference. As described above neither the high security hospitals nor the Tribunal has the power to insist on or effect a transfer of a patient from a high security to medium security hospital and there are a number of obstacles which in practice may lead to significant delay in such a transfer being implemented even if it is recommended either by the high security hospital or the Tribunal. Indeed there is no guarantee that it will be or legal requirement that it must be implemented.

Second, as to the Tribunal it has no power to order such a transfer. Its power to recommend is not binding either on the high security hospital or on any individual putative receiving medium security hospital. Although a failure by a high security hospital to follow its recommendations may be challenged by judicial review the issue on such a review would be whether the failure to follow the recommendation is irrational as distinct from whether it is wrong.

Third as to the ability to seek to persuade the staff and/or the managers at the receiving hospital that the patient should be transferred back, in my judgment that is not an adequate substitute for an entitlement to be afforded an opportunity to make an effective challenge to the initial decision to transfer either before it is made and/or implemented or, if and to the extent that that is incompatible with the overriding interests of protecting people from harm, as soon as reasonably practicable after it is made.

These avenues were described by Dr Murray in his second witness statement. They include discussions between the patient and his responsible clinician, a request to a clinical team meeting, a request to a care programme approach meeting and hospital managers meetings. They range from regular informal discussions with the responsible clinician at which the patient may request a transfer but which are not formal hearings for receiving evidence or representations and in practice are rarely attended by solicitors because legal aid budgets do not support such attendances to six monthly CPA meetings and hospital managers meetings.

The latter two may be attended by a patient’s solicitor or advocate and do present the patient with an opportunity to make representations as to why they no longer require high security care. In the case of a hospital managers meeting, which a patient may request, it is possible for the patient to submit independent reports and to attend in person and for live evidence to be given and written decisions are provided to the patient.

Although the CPA meeting and particularly the hospital managers meeting give patients a real opportunity to seek to demonstrate that they no longer meet the admissions criteria they suffer from the disadvantage just mentioned that they do not constitute a review of the initial decision to admit and transfer them. The original referring hospital is no longer involved so that even a favourable decision would not lead to automatic return to the referring hospital. Moreover it would not guarantee transfer to a medium security hospital which if it happened might not happen for a very long time. In addition although the practice of hearing live evidence at hospital managers meetings is undoubtedly very important the fact that there is no obligation on the hospital to hold such meetings as soon as possible after the patient is transferred may reduce its effectiveness as a means for the patient to challenge factual findings or assumptions which led to the original decision to transfer.

Further there are no established procedures for the making of representations to clinical staff and/or managers at Broadmoor to persuade them that a patient should be transferred to a medium security hospital. There is no requirement for an oral hearing, for the disclosure of the reasons for the initial transfer or the gist of the referral request or report of the assessing consultant such as would enable the patient to know the factual basis on which the decisions to admit and transfer were made.

In summary in my judgment the nature of the decision making process as to whether a patient detained under the 1983 Act should be transferred from a medium security hospital to a high security hospital and admitted to the latter is such as to engage a common law duty of fairness. That conclusion is compelled by the serious nature of the actual and potential adverse consequences to the patient flowing from the decision if it is adverse to him or her. It derives support from a number of authorities and is not precluded by any binding authority to the contrary.

There is no one size fits all rigid set of procedural requirements which apply in every case. Some but not all of the procedural requirements may vary to reflect the presence or absence of countervailing considerations arising from the need to protect people from harm, and the facts of the case. In particular the absence or presence of the need for decisions to be taken and/or implemented as a matter of urgency in the interests of protecting other people from harm may affect what is required in any particular case. In addition there may be fewer requirements in cases where facts are not in dispute and/or a patient to whom legal advice is available makes clear that he or she does not wish to avail him or herself of them.

In my judgment where the managers of a medium security hospital contemplate the referral of a patient detained under the 1983 Act to a high security hospital procedural fairness requires (subject to the need to protect persons from the risk of harm or some other substantial reason for departing from these requirements, which must be communicated to the patient’s advisers unless there is a substantial reason for not doing so, in which event that reason must be communicated to them) that:

Applying these requirements to the facts of this case I consider that there are respects in which they were not complied with.

On 19 August 2010 Ms Jolly asked for a copy of Stockton Hall’s application to Broadmoor and all supporting documentation, a copy of the assessment report prepared by the Broadmoor consultant psychiatrist who assessed the Claimant on 17 August 2010 the date of the Admissions Panel that would consider the application and permission to attend the Panel as an observer.

It does not appear that Stockton Hall informed Ms Jolly that the Claimant had been referred to Broadmoor on 4 August 2010, the inference from her letter being that she first learned of the referral from the Claimant after he was assessed by Dr Sengupta on 17 August 2010. Ms Jolly was not informed of the date on which the Admissions Panel would consider the application until the day before it met, in a letter dated 1 September 2010 from the Defendant. By that stage neither the Claimant nor Ms Jolly had received any documents either from Broadmoor or from Stockton Hall to whom it appears from the Defendant’s letter dated 1 September 2010 Ms Jolly had also made a request for disclosure of documents. She had been told by Dr Murray on 20 August 2010 that she could not attend the Broadmoor Admissions Panel even as an observer. Neither the Claimant nor Ms Jolly had been told the gist of the reasons for the referral or of Dr Vandenabeele’s or Dr Sengupta’s reports at any time before the Broadmoor Admissions Panel met to decide whether to support his admission let alone in time to enable them to make written representations in the light of them or as to why he should not be admitted and transferred from Stockton Hall.

Nor were the Claimant or Ms Jolly given the opportunity to make written representations in response to the gist of the reasons why he had been referred and the gist of the reports of Dr Vandenabeele and Dr Sengupta or as to why he should not be transferred to a high security hospital before the Broadmoor Admissions Panel met on 2 September 2010. Neither were the Claimant or Ms Jolly told that an oral hearing might be possible.

In the case of none of the above requirements were the Claimant or Ms Jolly told that these requirements were being or had been departed from because of the need to protect persons from the risk of harm or for some other substantial reason. The reality is that it is not the policy of Broadmoor to allow patients referred with a view to admission or their representatives to attend oral hearings. Nor was I shown any evidence that it is any part of the Broadmoor Admissions Policy to allow such patients and their advisers to make written representations at any stage, whether before the meeting of the Admissions Panel or after it, before a final decision is taken as to whether the patient should be admitted.

In those respects in my judgment there were breaches of the procedural requirements of the common law duty of fairness. I appreciate that prior to the meeting of the Admissions Panel on 2 September 2010 the Claimant had not raised any factual issues or challenges arising out of his referral and indeed had not explicitly indicated that he objected to being transferred. However in my judgment it was implicit in Ms Jolly’s letter dated 19 August 2010 that there might be such a challenge. Further it would be putting the cart before the horse to require the patient to identify facts which are challenged or in issue until he or she had been told the gist of the factual allegations and/or findings on the basis of which he or she has been referred and/or assessed. Moreover the requirement to give a patient the opportunity to make written representations is not dependent in my judgment on the patient having raised specific issues or challenges to the referral.

As to the reasons for referral and the gist of the Vandenabeele and Sengupta reports or indeed the reports themselves neither the Claimant nor Ms Jolly were informed that they were not being disclosed because of the need to protect persons from the risk of harm or for some other substantial reason. In particular it was not suggested that such disclosure might result in harm to any of the patients or staff involved in the weapons incident or that the urgent need for a decision to admit the Claimant to Broadmoor to be taken and implemented was so great as to make it impractical to disclose that information in the time available. Indeed as to the former, it is striking that in due course Dr Murray was content to send Ms Jolly copies of both Dr Vandenabeele’s and Dr Sengupta’s reports without any editing or omissions and indeed to disclose all the material that was before the Admissions Panel with the exception of the witness statements in respect of the Claimant’s original offence. As to the former Dr Vandenabeele’s report was dated 4 August 2010 and it was not suggested that the process of disclosing the gist of the report would require the meeting of 2 September 2010 to be put back. The same is true in relation to Dr Sengupta’s report albeit that was dated 23 August 2010.

In its letter dated 1 September 2010 the Defendant in its response to Ms Jolly’s request in her letter dated 19 August 2010 for disclosure of documents drew her attention to the Defendant’s photocopying charges which would be made and asked for her authorisation to go ahead. Given the importance of the issues at stake for the Claimant, in my judgment that would not be a sufficiently good reason for such documents as the Defendant considered could properly be disclosed to the Claimant and Ms Jolly not having been disclosed prior to that date. Apart from anything else Ms Jolly had asked for disclosure on 19 August 2010 together with the Claimant’s letter of consent and if confirmation of liability for photocopying charges was the reason for delaying disclosure that should and could have been made clear long before 1 September 2010. In any event I do not consider that the disclosure requirements to which I have referred are dependent upon receipt of confirmation of responsibility for photocopying charges.

The final decision by Broadmoor to admit the Claimant was not taken until 15 September 2010. By that stage the Claimant and Ms Jolly had still not received the gist of the reasons for the referral or of the reports of Dr Vandenabeele and Dr Sengupta or the reports themselves or any other documents, had not been given an opportunity to make written representations before Broadmoor made its final decision to admit the Claimant and had not been informed that an oral hearing might be a possibility. Nor were they told that any of these steps could not be taken in the interests of protecting people from harm or for some other good reason. It is true that Ms Jolly appears not to have returned to Broadmoor its formal application for access to the Claimant’s records with a signed agreement to pay photocopying charges which she had been sent on 1 September 2010 until 15 September 2010. Given that she had asked for the documents on 19 August 2010 this does not seem to me a good reason for the documents not having been disclosed prior to the decision of Broadmoor to admit the Claimant being taken. Nor was it at any stage suggested that Ms Jolly’s failure to provide the authorisation requested by the Defendant on 1 September 2010 was the reason why no disclosure of documents, let alone the gist of reasons and reports was made before the decision of 15 September 2010 was made.

In her letter dated 16 September 2010 Ms Jolly put the Defendant on notice that she was concerned that the Admissions Panel might not have had up to date and accurate information or the relevant thoughts and observations of the Claimant. On a cursory review of background information produced by Stockton Hall she was concerned about the accuracy and detail of the information before the Panel and asked for an opportunity to assist the Claimant in the submission of representations to the Admission Panel. She repeated her request for access to documents, records and information before the Admissions Panel and asked for the referral to be reviewed both by the referrer and, based on representations from the Claimant, before a freshly constituted Admissions Panel or for such a review to be treated as an appeal under the Broadmoor Operational Policy. She also asked for a stay of the transfer until the review. If the case was too urgent for further review she asked for disclosure of the material before the Admissions Panel, the reasons for admitting the Claimant to Broadmoor and the reason for not staying the transfer. On 20 September 2010 she received Dr Sengupta’s report and the letter from Dr Das to Stockton Hall dated 15 September 2010 informing it of Broadmoor’s decision. That letter did not disclose the substantive reasons for the decision. In particular it made no reference to the reasons recorded in Dr Das’ file note dated 15 September 2010 which referred to the immediate reason for referral as the manufacturing of a dangerous weapon “with intent” to cause harm to others.

Nonetheless armed with Dr Sengupta’s report Ms Jolly sent a letter before claim to the Defendant dated 22 September 2010. In that letter she asserted that the Defendant had failed to take into account relevant considerations and that Dr Sengupta’s report contained factual inaccuracies which were challenged by the Claimant. It also drew attention to the failure of Dr Sengupta to consider considerable relevant information including the fact that the Claimant had voluntarily handed over the weapon which he made to staff and had told them where the other one was hidden which did not suggest an intention to use the weapon. Nor had there been reference to the fact that the Claimant made the weapon after trying to get help from the staff over several days to move either him or the other patient away from each other. She further asserted that he appeared to give excessive weight to the risk as self-reported by the Claimant.

She repeated the submission that the Claimant should as a minimum be provided with a right to make representations in advance of the decision being made. Since it concerned an assessment of risk as a matter of fact fairness required that he should have an opportunity to comment on the evidence and correct any factual or legal inaccuracies. To that end she also submitted that he should be entitled to an oral hearing. She repeated the demand for a suspension of the transfer and withdrawal of the decision pending full disclosure and representations from the Claimant.

In his letter dated 24 September 2010 Dr Murray indicated that the bundle of material before the Admissions Panel had been reviewed since receipt of her letter dated 22 September 2010 to identify significant third party information which would have to be excised under data protection guidelines and that the only information that would be withheld were the witness statements in respect of the original offence. He undertook to send all material by recorded delivery the next day. However having spoken to Dr Vandenabeele that afternoon, who confirmed that in his view the Claimant’s transfer to Broadmoor should wait no more that one week because, although there had been no specific incidents in the past few days, the situation whereby he anticipated that he was to be transferred to Broadmoor shortly was one where he had nothing to lose, which was inherently clinically high risk, the Defendant proposed to admit the Claimant early in the week beginning 4 October 2010.

On the same day the Defendant’s solicitors wrote to Ms Jolly confirming that it had been decided that the Claimant would be admitted to Broadmoor on 6 September (a mistake for October) 2010 on the basis that Stockton Hall considered that it could not for clinical and safety reasons be further delayed but should take place promptly.

However neither Dr Murray nor the Defendant’s solicitors gave any indication that the Claimant would be given an opportunity to make written representations in response to the almost full disclosure of the material before the Admissions Panel or at all either before the transfer took place or thereafter with a view to seeking a rescission of the decision. Nor was there any response to the request for an oral hearing. No reason was given as to why neither of these opportunities would be afforded to the Claimant.

There is no reason to doubt on the evidence before me either the genuineness or the reasonableness of Dr Vandenabeele’s view that the situation whereby the Claimant anticipated his imminent transfer was one where he had nothing to lose, which was inherently clinically high risk so that the transfer should not be delayed beyond a week. Accordingly it does not seem to me that there can be any valid criticism of the decision to proceed with the transfer in the week beginning 4 October 2010. It may be that by that stage there would have been insufficient time for the Admissions Panel to consider any written representations in time to act upon them before the anticipated transfer date. A fortiori in relation to the consideration of whether an oral hearing was necessary and if so whether it could be arranged before the transfer. Thereafter the proceedings for an interlocutory injunction and then the Claimant’s abandonment of the injunction intervened.

However having regard to the length of time between the original referral on 4 August 2010 and the anticipated date for implementing the decision to transfer the Claimant on 6 October 2010 in my judgment the Defendant has not identified any good reason why the Claimant could not before the decision was implemented have given the Claimant an opportunity to make written representations based at least on the gist of the reasons for the decision identified in Dr Das’ file note dated 15 September 2010, Dr Vandenabeele’s referral letter dated 4 August 2010 and Dr Sengupta’s assessment report dated 17 August 2010. The factual allegations and findings in those three documents with which the Claimant and Ms Jolly took issue went to the heart of the reasons for the decision, the assessment of risk and of the unsuitability of Stockton Hall safely to manage it. They were of comparatively narrow compass and it was not ever suggested by the Defendant or Stockton Hall that revealing the contents of any of those documents constituted a security risk for any of the patients or staff concerned. In my judgement fairness required that the Claimant should have been given an opportunity to make written representations before the transfer was due to take effect on 6 Oct 2010.

As to an oral hearing it is in my judgment clear that no proper consideration was given as to whether such a hearing was necessary in order to resolve factual issues arising out of the referral and the reasons for the decisions to admit and to transfer the Claimant. It is true that the areas of factual dispute and challenge were not identified by Ms Jolly until her letter dated 22 September 2010. However that was the result of the failure of the Defendant to inform the Claimant and her of the gist of the factual basis of the risk assessment made by Dr Vandenabeele and accepted by the Admissions Panel until Dr Sengupta’s report was made available to her on 20 September 2010.

It is in any event clear in my judgment from the Broadmoor Operational Policy and Dr Murray’s refusal to allow Ms Jolly to attend the Admissions Panel meeting on 2 September 2010 even as an observer that it was the Defendant’s general and universal practice as a matter of policy never to permit a patient or their adviser to attend an oral hearing for the purpose of making representations or giving informal evidence. It is also in my judgment clear from the Defendant’s solicitors’ letter dated 24 September 2010 that it had no intention of giving or even considering giving the Claimant an opportunity to make written representations or to attend an oral hearing at any stage either before or after the Claimant was transferred. There was no suggestion that, but for the urgent security need to transfer the Claimant quickly after he became aware of the decision to transfer him, he would have been given an opportunity to make written representations or that consideration would have been given to allowing him or Ms Jolly to attend an oral hearing.

Equally there was no indication that either of these opportunities would or might be afforded to the Claimant after the transfer with a view to seeking a rescission of the decision. To the contrary the only opportunities which the Defendant’s solicitors identified as available to the Claimant after the transfer were the right to apply to the Tribunal for discharge from detention or for an extra-statutory recommendation in favour of transfer to other hospitals. I have already explained why in my judgment those rights are not an adequate substitute for the procedural rights to which a patient in the position of the Claimant is entitled by reason of the common law duty of fairness.

Finally I would add that there was no evidence before me to suggest that the managers of Stockton Hall took any steps to satisfy themselves that the procedural requirements which I have held were engaged by the decisions as to whether the Claimant should be transferred and admitted to Broadmoor were complied with.

In these additional respects in my judgment there were failures to comply with the procedural requirements to which I have referred.

It follows that in my judgment the Claimant is entitled to a declaration that the decision making process by which he was transferred to Broadmoor and admitted as a patient by Broadmoor engaged a common law duty of fairness and that in the respects identified above the procedural requirements of that duty were not complied with.

Article 6.1 of the ECHR provides that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

In his written submission on behalf of the Secretary of State Mr Chamberlain identified what, following a discussion between counsel, he understood to be the live issues in relation to the Article 6 claim:

It will be recalled that by the time the Secretary of State was granted permission to make submissions, the Claimant had made two concessions. First, in the light of the decision of the Court of Appeal in King it was conceded that it is not open to the Claimant in this court to submit that Article 6 was engaged because other ECHR rights and in particular Article 8 rights were engaged. Second he no longer sought to argue that his transfer was a breach of the substantive provisions of Article 8 in the sense that it was disproportionate. That was said in Mr Southey QC’s skeleton argument to be because it was accepted that that issue was now academic. It was not explained why it was considered to be academic and I infer the reason to be that the Claimant had by March 2012 indicated that he no longer challenged his transfer to Broadmoor and was not inviting the court to order the transfer and/or the decision to transfer him to be set aside and/or a new decision to be made. I infer that that was the reason rather than a recognition that Article 8 could not provide a springboard for his Article 6 claim because if there had been a breach of his Article 8 rights that would have constituted a free standing claim in its own right.

The first issue, whether a decision to transfer a detained patient from a medium security hospital to a high security hospital is a “determination” of his “civil rights” for the purposes of Article 6, raises two questions. First is there an autonomous civil right recognised by Article 6 which is enjoyed by a prisoner in a medium security hospital? Second, if so, is it “determined” by a decision to transfer him to the high security hospital?

There was some blurring of the lines between these two questions in some of the parties’ submissions. The Claimant in Mr Southey QC’s initial skeleton argument relied on the decision of the Grand Chamber in Enea v Italy, application no.74192/01. He submitted that it held that a decision to allocate a prisoner to a special unit involved restrictions which were within the sphere of that prisoner’s personal rights and were therefore civil in nature. Reference was made to the European Prison Rules which provide that “[the] regime shall allow prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.” [48], [103]. Further restrictions that engaged Article 6 it was submitted include matters such as restrictions that make it difficult to maintain relationships (including with non-family members) and exclusion from outdoor exercise. [106]. As a consequence the complaint regarding the restrictions placed on the applicant as a consequence of being placed in the special unit related to Article 6. [107].

Reliance was also place on the decision of the European court in Stegarescu v Portugal, application no.46194/06, 6 April 2010. It was submitted that the court held that Article 6 was engaged because the regime restricted prisoner’s activities in a number of significant respects that interfered with their civil rights and obligations, including the fact that they were limited to a visit from their family for one hour every week. [37] – [38].

It was submitted that Article 6 was engaged by the decision to admit the Claimant to Broadmoor and would be engaged when decisions are taken in future as to whether he should remain detained in conditions of high security. In support of that submission it was submitted that the Claimant retains a right not to be placed in high security unless there is sufficient justification. Further or alternatively aspects of the regime in high security such as the monitoring and withholding of incoming correspondence can only be imposed in high security. Rights regarding incoming correspondence are residual rights of patients that can only be lost in limited circumstances. As a consequence the decision regarding high security also determined other aspects of the Claimant’s rights under domestic law. It was accepted that the European Prison Rules are not directly enforceable. However the dispute in this case was said to relate to matters which have implications for the maintenance of relationships which is the sort of matter that is sufficient to mean that article 6 is engaged.

Much of Mr Hyam’s skeleton argument on behalf of the Defendant was addressed to seeking to demonstrate that a decision to transfer a patient from medium security to high security does not determine or decisively affect the patient’s Article 8 rights with the consequence that Article 6 is not engaged. Those submissions became redundant in the light of the Claimant’s concession that in the light of the decision of the Court of Appeal in King it is not open to him in this court to argue that Article 6 is engaged by reason of a determination or even decisive affecting of his article 8 rights.

The Defendant relied on the decision reported in X v United Kingdom (1979) 20 DR 202 and Brady v United Kingdom (1981) 3 EHRR 297 as supporting the submission that the “proceedings” before the Admissions Panel were not such as to engage Article 6. It was an administrative decision to transfer a patient which was not a dispute which was decisively determinative of the Claimant’s civil rights. It was said that in Brady the Claimant argued that a determination of his category A status by a categorisation committee with the consequence that all his visits were supervised, he was only allowed limited freedom of movement in the hospital environment where he was detained and he was subjected to vetting of his correspondence, was not compliant with Article 6. The Commission held that:

“The decision of the committee to classify a prisoner as category A, in view of the security risk which he presents, is not a determination of such matters, not being a question of civil rights and obligations, but an administrative classification.” (page 301).

Mr Hyam submitted that the real issue before the Broadmoor Admissions Panel is a clinical evaluation of risks presented by the patient and, having regard to that risk, the propriety of the patient’s admission to Broadmoor by reference to the admissions criteria which provide that patients must not be detained in a higher level of security than they require. Such a proceeding it was submitted does not “determine” civil rights. It is an administrative risk evaluation. In terms of its administrative nature it has some similarities with the categorisation of prisoners within the prison service – see Brady v United Kingdom and with the setting of licence conditions for a prisoner see R(MA) v National Probation Service [2011] EWHC 133 2 (Admin). Further it was submitted that there was no real dispute that the criteria for admission to Broadmoor were satisfied. The Claimant was now seeking to raise issues which could have been put on behalf of the Claimant had there been a fair procedure. Those were essentially arguments that the risk posed by the Claimant was not as serious as that which the Panel concluded. It was submitted that there is no medical evidence to support such a submission.

Mr Hyam submitted that the Claimant’s argument that, because the Admissions Panel was required by section 6 of the Human Rights Act 1998 to ensure that its decision did not breach the Claimant’s Conventions rights, the proceedings before it was a “determination” of the Claimant’s Convention rights was wrong. The decision to transfer was an administrative decision, there was no dispute and the decision did not determine any civil rights. Reliance was placed on the statement by Lord Hoffmann in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at para 175 that the criterion for the European Court deciding whether Article 6 is engaged is the nature of the proceedings and not the Articles of the Convention which are alleged to be violated. Unless the “proceedings” in issue are concerned with the determination of civil rights, Article 6 will not be engaged even if the result of the proceedings arguably give rise to an alleged infringement of human rights. Reliance was placed on dicta to similar effect by Lord Hope in West at para 79 and by Sedley LJ in R (Maftah and Khaled) v Foreign Secretary [2012] QB 477 at paras 24 and 26.

In written reply submissions Mr Squires stated that the Claimant, in the light of the decision of the court of Appeal in King, sought to rely on autonomous civil rights (apart from other ECHR rights which he acknowledged could not be used to found an Article 6 claim) which are affected by transfer but not including a right to associate with other prisoners which he accepted had been rejected as a “civil right” in King.

Mr Squires sought to distinguish the case of Brady relied on by the Defendant. He accepted that the European Commission of Human Rights concluded in that case that prison categorisation did not per se engage civil rights. He further stated that the Claimant in this case is not contending that the fact that he was transferred would in and of itself engage Article 6. He accepted that he must identify specific civil rights affected by the transfer.

However he submitted that the jurisprudence of the ECHR has developed considerably since Brady and that it is now clear that certain aspects of high security regimes in prison can infringe civil rights so as to fall within Article 6(1). Again he relied on Enea as holding that restrictions on “contact with… family and those affecting… pecuniary rights” [103], prohibitions on number of visits from family members and “ongoing monitoring of correspondence and telephone calls” [106] fell within Article 6. He also submitted that the European court noted in Stegarescu that disputes about “very high levels of surveillance” fall within Article 6(1).

In the instant case Mr Squires submitted that when a patient transfers from medium to high security, by reason of statutory provision and regulations he loses certain rights not to have his phone calls monitored or to have post delivered to him or to pack post in private. Those are, as the ECHR has recognised, civil rights that are decisively determined by the transfer. There are powers of surveillance, monitoring of phone calls and correspondence which exist in high security hospitals that are not available in medium security hospitals.

In an additional reply note Mr Squires, at my invitation, responded to the Defendant’s submission that even if the Claimant had civil rights which were recognised by Article 6 there was no decisive determination of them such as is required by Article 6 – see Lord Hoffmann’s dicta in RB (Algeria). In RB (Algeria) the Claimants argued that Article 6 was engaged because a decision to deport them would infringe other Convention rights (para 174). Mr Squires said that that argument was rejected by the House of Lords who noted that the ECHR has made clear that decisions on deportation by their nature do not determine civil rights as there is no civil right of an alien to stay in a country of which he is not a national. Their Lordships held that civil rights are not engaged even if a decision to deport has an “incidental” effect upon other Convention rights, for example Article 18 (paras 85 – 90, 169 – 179, 226 – 229). Mr Squires submitted that the Defendant’s argument that this applies to the Claimant’s case and his reliance on Lord Hoffmann’s dictum that “the criterion for the European Court deciding whether Article 6 is engaged is the nature of the proceedings and not the articles of the Convention which are alleged to be violated” (para 175) is wrong.

First the Claimant in this case is not seeking to argue that Article 6 was engaged because other Convention rights were engaged by his transfer to a high security hospital. Instead he sought to argue that other civil rights, specifically recognised by the ECHR in the prison context, were affected by the transfer. Second he submitted that there is no authority to support the proposition that proceedings concerning conditions of detention (unlike deportation proceedings) are proceedings of a nature that do not fall within Article 6. To the contrary cases such as Enea and Stegarescu make clear that proceedings on prison conditions do fall within Article 6. In particular decisions which determine for example whether regimes which lead to the monitoring of phone calls or correspondence are justified are by their nature proceedings which fall within Article 6.

Any proceedings which considered whether the Claimant’s transfer is justified would be directly decisive of his civil rights. Detainees lose their civil rights when they are transferred to high security hospital because a different legal regime applies in relation to matters such as correspondence and telephone calls. Therefore the transfer and any process to challenge it decisively determines civil rights and must comply with Article 6. In that regard the Claimant’s case was on all fours with Stegarescu. In that case the ECHR noted that high levels of surveillance, restrictions on family visits and monitoring of correspondence and telephone calls affected detainees’ civil rights so as to fall within Article 6. Unlike in Enea in which prisoners could appeal against the restrictions placed on them in detention (para 119) the applicants in Stegarescu complained that there was no appeal route allowing them to contest their placement in a special regime of security. The ECHR accepted that that was the case and that as a consequence there was a breach of Article 6(1) (paras 46 – 52). The same was true for the Claimant in the instant case. He has no means in an ECHR compliant (i.e. independent) process of challenging the decision to transfer him notwithstanding that the decision was directly determinative of his civil rights.

In his written submissions on behalf of the Secretary of State Mr Chamberlain also relied on Brady. In his submission what was decided in that case was not that the Claimant did not have civil rights within the meaning of Article 6, but rather that even though his complaints about the cumulative effect of the conditions of detention might in principle fall within Article 3 (though they did not do so on the facts of that case) the decision on security grounds to classify a prisoner as Category A was not a determination of civil rights but an “administrative classification”. It was for that reason that the procedural protections of Article 6 did not apply at the stage of that administrative decision.

Reliance was placed on the fact that in King Maurice Kay LJ (with whom Lloyd LJ agreed) referred to X v United Kingdom and Brady as cases which “classify such categorisations as “administrative” rather than as determinations of disputes about civil rights” and that he added: “we have not had our attention drawn to any subsequent questioning of these authorities”. [41]. (X and Brady are in fact two different reports of the same case)

Mr Chamberlain pointed out that in reaching the view that the approach exemplified in Brady remained good law, Maurice Kay LJ holding that that approach was “consistent with the modern domestic jurisprudence on discretionary administrative decision making” [43], the Court of Appeal was well aware of the decisions in Enea and Stegarescu which it considered indetail at [26]-[29].

Reference was made to Maurice Kay LJ’s statement that “so far as Article 6 is concerned, any non-engagement at the point of the administrative decisions may be because there is not established “civil rights” or because there is, as yet, no dispute (or contestation) about one. Reliance was placed on the fact that the majority of the Court of Appeal (Elias LJ dissenting) held both that, in the case of cellular confinement, there was no dispute at any stage before an application for judicial review is commenced [37] and [76], and that the right to associate with other prisoners which was restricted by cellular confinement was not a “civil right” (paras 38-40 and 76). Either one of those findings would on its own it was said have led to the conclusion that Article 6 was not engaged at what Mr Chamberlain characterised as the “administrative discretion” stage.

It was submitted that there is no general principle that the procedural safeguards guaranteed by Article 6 necessarily apply to any administrative decision which has an incidental effect on either Convention rights or rights recognised as “civil rights”. Given the Claimant’s concession that Article 6 is not engaged by reason of the effect of a decision on Article 8 rights, the relevance of that submission for present purposes was to any incidental effect which a decision to transfer the patient to high security might have on other autonomous rights recognised as “civil rights”.

As did the Defendant, the Secretary of State relied on the speech of Lord Hoffmann in RB (Algeria) at para 175. Notwithstanding that an administrative decision to deport may have a series of effects on rights protected by both the Convention and domestic law Lord Hoffmann observed:

“The European court has consistently said not only that proceedings concerning the validity of a deportation order do not engage article 6 but that it makes no difference that the order for deportation has an incidental effect upon rights under other articles of the Convention. Even in cases based upon detention pending deportation, where the power of detention is wholly ancillary to the power of deportation and the requirements of article 5(4) are pretty much indistinguishable from those of article 6 (both require the decision to be made by a court, with appropriate procedures), the European court has been punctilious in insisting that article 6 is not engaged… it is clear that the criterion for the European court in deciding whether article 6 is engaged is the nature of the proceedings and not the articles of the convention which are alleged to be violated. If the proceedings concern deportation, article 6 is not engaged, whatever might be the other articles potentially infringed by removal to another company.” (Emphasis added.)

It was further submitted that like prison governors making decisions on cellular confinement, hospital authorities exercising their power to transfer a patient “do so not just in a binary mode as between themselves and an individual prisoner. They are acting in the interests of the security of the institution as a whole” (see King at para 44). A decision to transfer a patient like a decision on a prisoner’s security classification is in its nature administrative and unsuited to judicialisation. They will often involve judgments based on clinical evaluation as to the environment most apt to the patient’s clinical needs. They may also involve a delicate balancing of the particular patient’s interests against those of other patients and of staff. They are not aptly characterised as contestations and are “best entrusted to those with a necessary experience and expertise as an exercise of collective common professional discretion, with built-in safeguards, albeit falling short of Article 6 standards. Amenability to judicial review is the appropriate protection”. (ibid). The fact that the exercise of professional judgment may (as in the present case) involve consideration of questions of fact does not alter the administrative nature of the decision.

As to Enea and Stegarescu it was submitted that neither decision demonstrates that the procedural protections of Article 6 applied at the administrative discretion stage. They were both concerned with alleged deficiencies in the Italian court process by which a prisoner challenged various restrictions imposed on him. As Maurice Kay LJ put it in King:

“Enea (which, as a decision of the Grand Chamber should be treated as the leading Strasbourg authority) was also concerned with Article 6 at the level of the judicial proceedings in which restrictions on personal rights were challenged. Stegarescu, too arose out of shortcomings in the applicable domestic judicial process” (para 35).

In what in my judgment was an important submission, Mr Chamberlain submitted that in most respects transfer to a high security hospital does not entail restrictions on civil rights, even though it triggers a legal regime in which (subject to proper safeguards) decisions may be taken which does restrict those rights. Implicit in that submission appeared to be an acceptance of the proposition that some decisions taken in the regime of a high security hospital may restrict rights which are civil rights within the meaning of Article 6.

Thus, although section 4(5) of the Regulation of Investigatory Powers Act 2000 confers a power to intercept telephone calls of patients at high security hospitals, that power may only be exercised if done pursuant to directions given under section 8 of the National Health Service Act 2006. Any restriction on a patient’s right to make unmonitored telephone calls occurs only when a decision is made under Direction 34 of the 2011 directions and not on transfer. Moreover where the hospital does decide to record or monitor a patient’s telephone calls, the patient has a right to seek review of that decision before an independent regulator, the Care Quality Commission (“CQC”) – see Regulation 4 of the Care Quality Commission (Additional Functions) Regulations 2011. The hospital is required by Direction 34(9) to comply with any directions given by the CQC.

Similarly although high security hospitals have the power to withhold mail sent to or by patients under section 134(1) and (2) of the 1983 Act, there will be no restriction of a patient’s civil right to send and receive post unless the decision is taken to withhold a particular item. Further such decisions are also reviewable by the CQC which can direct that the correspondence in question should not be withheld – see section 134A of the 1983 Act and regulation 30 of the Mental Health (Hospital, Guardianship and Treatment) Regulations 2008.

The Secretary of State accepted that transfer to a high security hospital does of itself trigger restrictions on one right recognised as a “civil right” namely the right to send and receive correspondence without monitoring. Interception of postal communications is mandatory at high security hospitals – see directions 26 to 29 of the 2011 Directions. Medium security hospitals have no power to intercept mail. However it was submitted that that fact on its own does not transform an essentially administrative decision into a contestation for the purposes of Article 6. Thus, applying Maurice Kay LJ’s two stage test in King, it appears that the submission was that Article 6 is not engaged by the fact that a transfer to a high security hospital itself triggers restrictions on a right which is recognised as a “civil right” because, notwithstanding the existence of an established “civil right” there was as yet no dispute or contestation about it when the decision to transfer is made.

As to the Claimant’s submission that transfer to a high security hospital lengthens the period of the patient’s detention, it was accepted by the Secretary of State that in most cases, though not invariably, it remains the case that a patient in a high security hospital is likely to be transferred to a medium security hospital before being considered for discharge directly into the community. Thus it was accepted that Lightman J’s observations in ex parteHarry at page 1742 hold good. However it was submitted that this does not show that the decision to transfer will of itself lengthen the period during which the patient may expect to be detained. That was said to be for two reasons. First, as Dr Davies said in his witness statement, patients admitted to high security hospitals are those who, in the view of the relevant clinicians “present a grave and immediate danger and are high risk as a result of complex and enduring mental illness or personality disorder”. A patient who, in the view of the relevant authorities, answers to that description is unlikely to be discharged into the community, whether he is transferred to a high security hospital or not. Second if, contrary to what should happen, a patient no longer requires to be detained in a high security hospital but is not transferred to a lower securing setting because of delays in security a bed or disputes between detaining authorities or otherwise, then it is the failure to transfer him out of a high security hospital – not the decision to transfer him into it – which lengthens the likely total period of his detention. Patients can complain about such failures by judicial review proceedings.

Further and in any event it is well established that decisions whether to transfer a patient (or prisoner) between different security levels do not engage Article 5(4): see the decision of Silber J in MP v Nottinghamshire Health Care NHS Trust [2003] EWHC 1782 (Admin), [2003] MHLR 381 at paras 9 – 22. As Lord Hoffmann pointed out in RB (Algeria) “The requirements of Article 5(4) are pretty much indistinguishable from those of Article 6 (both require the decision to be made by a court, with appropriate procedures).” (para 175). It was submitted that it would be surprising if a decision expressly held not to engage Article 5(4) (which deals directly with detention) were held to engage Article 6 (which does not) because of its likely effect on the total period of detention.

In a written response to the Secretary of State’s submissions Mr Squires submitted that the key question is whether the decision to transfer the Claimant from medium to high security had a decisive effect on his “civil rights”. If so he was entitled to access to an independent and impartial tribunal to challenge it. Determining whether the decision was “administrative” in character or when precisely the “dispute” arose does not assist in answering that key question.

The fact that a decision under challenge is characterised as “administrative” does not he submitted mean that Article 6 is not engaged. It has long been established by both Strasbourg and domestic courts that decisions which determine or decisively affect “civil rights” fall within Article 6 even if they are administrative in nature. There is nothing in King or any recent authority that suggests a departure from that well established jurisprudence. It was submitted that Lord Hoffmann in Begum v TowerHamlets LBC [2003] 2 AC 430 noted that the Strasbourg court has developed the law on Article 6 so as to apply not only to private law disputes but also to administrative decisions that affect civil rights:

“30.

[One] development has been the doctrine, starting with Ringeisen v Austria [1971] 1 EHRR 455 by which the Strasbourg court has extended Article 6 to cover a wide range of administrative decision-making on the ground that the decision determines or decisively affects rights or obligations in private law. … More recently the scope of Article 6 has also been extended to public law rights such as entitlement to social security or welfare benefits under publicly funded statutory schemes, on the ground that they closely resemble rights in private law: Salesi v Italy [1993] 26 EHRR 187.”

It was submitted that there are numerous instances of administrative decisions falling within Article 6. For example: decisions by the Secretary of State for Health to add care workers to a list of those unsuitable to work with vulnerable adults (R (Wright) v SSH [2009] 1 AC 739) and decisions as to whether a person is entitled to housing benefit (Tsfayo v UK [2009] 48 EHRR 18). Those decisions were said to be no less “administrative” in nature than the decision to transfer a patient from medium to high security yet they fell squarely within Article 6 because as Lord Hoffmann noted they determine or decisively affect civil rights.

It was accepted that certain discretionary administrative decisions as to whether benefits are to be conferred on members of the public may not engage Article 6: see R(A) v Croydon LBC [2008] EWCA Civ 1445 and Ali v Birmingham CC [2010] 2 AC 39 in relation to decisions to provide accommodation to children or homeless adults. And see also the discussion in King at paragraph 43. However it was submitted that the reason why Article 6 was not engaged in those cases was not because the decisions were “administrative”. Rather it was because there were no civil rights being determined. There was “too much discretion” as to the “kind of accommodation” to be provided for there to be a “civil right” which the Claimants enjoyed (see A at paragraph 59).

The Claimant accepted that the mere fact of prison categorisation as in Brady or cellular confinement as in King does not determine or affect civil rights. However the ECHR has, since Brady was decided, recognised that other aspects of a prison regime can affect civil rights. Thus disputes about “ongoing monitoring of correspondence and telephone calls” of prisoners are disputes about “civil rights” so as to fall within Article 6 (see Enea at para [106]) and the same is true of disputes concerning “levels of surveillance” (see Stegarescu at paragraph [35]).

The recognition by the Secretary of State that a transfer from a medium to a high security hospital itself triggers restrictions on a right recognised as a civil right (because there is an obligation on the latter to open and inspect incoming or internal post and to inspect outgoing post or packages sent by patients) was said to be fatal to the Secretary of State’s argument. The consequence, it was submitted, is that those transferred must be entitled, if they wish, to challenge the restriction on their civil rights in proceedings that comply with Article 6. It was not suggested by the Secretary of State that there are any proceedings in which they can do so.

Further, even in those instances where there is a power but not a duty to intercept phone calls and to withhold post in a high security hospital (a power that does not exist in a medium security hospital) it follows that a patient loses the “right” enjoyed in a medium security hospital that his phone calls not be listened to or his incoming or outgoing post not be withheld or opened when he is transferred to high security (and that is so irrespective of how frequently his post is withheld). Again he is entitled by Article 6 to challenge the loss of the right.

The decision in King was thus distinguishable. In King, where the Court of Appeal held that there was no civil right to association, there were, unlike the present case, no other independent civil rights being determined or decisively affected by the decision to confine prisoners to their cells.

Mr Squires took issue with the Secretary of State’s submission that the fact the transfer to a high security hospital triggers restrictions on civil rights does not transform the administrative decision to transfer the patient into a contestation for the purposes of Article 6. Thus it was submitted that the decision of the ECHR in Stegarescu that the absence of an appeal route allowing the applicants to contest their placement in a special regime of security which they argued restricted rights of a civil character constituted a breach of Article 6. (See paras 41 and 46-52). That was said to be the same as the challenge brought by the Claimant in this case who contends that there are deficiencies in the process because he has no appeal route in Article 6 compliant independent proceedings to challenge the decision to transfer him and that is so notwithstanding that the decision means that he has lost a number of civil rights. The decision to transfer him is no more of an administrative decision than the decision to place the applicants in Stegarescu in a special regime of security. But because the regime in which the Claimant was placed restricted rights of a civil character he, like the applicants in Stegarescu, is entitled to appeal to a court that satisfies Article 6.

In a rejoinder for the Secretary of State Mr Chamberlain submitted that the reasoning in King cannot be explained away by reference to the fact that in that case there was no established civil right at issue. That was only one of the reasons why it was held that Article 6 was not engaged in that case. The discussion at paragraph 44 of Maurice Kay LJ’s judgment covering the administrative and discretionary nature of the decision-making process was designed to show that there was no dispute (contestation). Hence, the conclusion that “Article 6 was not engaged at the stages of the governor’s decision or the SRBs”, echoing the holding at paragraph 37 that there was “plainly … a dispute when an application for judicial review is commenced but I do not consider that there is one earlier than that”.

That holding was said to march in step with Lord Hoffmann’s opinion in RB(Algeria) which confirms that it is “the nature of the proceedings and not the articles of the Convention which are alleged to be violated” that determines whether Article 6 is engaged. The Claimant’s submission that the question whether there was a “dispute” is irrelevant in the present case because judicial review proceedings were commenced on 30 September 2010 was to misunderstand the significance of the reasoning in King. If the nature of the proceedings before the hospital managers is (like the nature of the proceedings before the governor in King) such that no dispute/contestation arises at that stage, the issuing of judicial proceedings does not somehow make Article 6 apply to those proceedings: rather Article 6 applies in the judicial review proceedings. That is because as Maurice Kay LJ made clear at paragraph 44 “amenability to judicial review is appropriate protection.”

Issue 1

(ii)

Discussion

As Maurice Kay LJ stated in King any non-engagement of Article 6 at the point of the administrative decision may be because there is no established “civil right” or because there is, as yet, no dispute or contestation about one. Thus the burden is on the Claimant to prove both the existence of an established “civil right” at the point of the decision to transfer and also the existence at that stage of a dispute or contestation about that established “civil right”. Failure to discharge that burden in either respect would be fatal to the Article 6 claim. If Article 6 is not engaged no question arises as to what procedures or safeguards are required in order to comply with Article 6 or as to whether there was a breach of Article 6. A fortiori no question as to whether the 1983 Act is incompatible with Article 6 arises.

As it seems to me the logical starting place is the question whether there is an established “civil right” within the meaning of Article 6. If there is no such established right Article 6 is for that reason not engaged and no question arises as to whether there was or was not at the stage of the decision to transfer a dispute or contestation about an established “civil right”.

In King by a majority (Maurice Kay LJ and Lloyd LJ, Elias LJ dissenting) the Court of Appeal held that there is no “civil right” of association with other prisoners. Having reviewed a number of European authorities, including Enea and Stegarescu, Maurice Kay LJ concluded that they do not unequivocally establish one as a matter of Convention law. He held that they generally emphasise rights such as family visits. Nor he held do the YOI Rules or the Prison Rules expressly confer a right to associate with other prisoners. Neither is there an implied right of association amounting to a “civil right”. He held that the correct analysis is to see association with other prisoners as a normal privilege rather than a right and that it is subject to withdrawal in accordance with the Rules, particularly those permitting cellular confinement or segregation, which invest governors with discretionary powers. The exercise of those powers and the process of review by the Segregation Review Boards were amenable to judicial review which among other things would secure Convention rights such as those under Articles 3 and 8. [40].

The next paragraph of Maurice Kay LJ’s judgment is in my view important in the present context. He stated that he did not consider that the Strasbourg authorities are inimical to what he described as “this analysis”. He stated that the early Commission decisions on security categorisation tend to support it and referred to X v United Kingdom and Brady v United Kingdom which he said “classified such categorisation decisions as “administrative” rather than as determinations of disputes about civil rights. We have not had our attention drawn to any subsequent questioning of these authorities.” [41].

The importance of the paragraph in my view lies in the question whether in holding that the Strasbourg authorities were not inimical to his analysis and that the early Commission decisions on security categorisation tend to support it, he was referring to his conclusion that association with other prisoners is not a “civil right” or to his conclusion that Article 6 was not engaged including because the stage of the administrative decision to segregate or to continue segregation did not yet constitute a dispute or contestation about an established “civil right”.

If it was the former then it would appear to follow that Maurice Kay LJ regarded the decision in Brady and X as at least in part constituting or based on a conclusion that there was no autonomous “civil right” enjoyed by Brady prior to his being categorised as Category A and that he considered that conclusion to remain good law notwithstanding the subsequent decisions in Enea and Stegarescu and the two other European authorities which he reviewed.

In my judgment that is not what Maurice Kay LJ held in that paragraph. The analysis which he considered to be supported by the decision in Brady and to which he did not consider that the Strasbourg authorities are inimical was not in my view confined to his conclusion that there was no established civil right. Rather it was referring to his general conclusion that Article 6 was not engaged including because there was as yet no dispute or contestation about one.

I reach that conclusion because of the passage in the judgment of the Commission in Brady which Maurice Kay LJ considered to support his analysis. That was the passage, cited above in which it was held that “the decision of the Committee to classify a prisoner as Category A in view of the security risk which he presents is not a determination of his civil rights and obligations or of any criminal charge against him, not being a question of civil rights or obligations or criminal charges but an administrative classification. “(paragraph 2). The reference to the decision to classify not being “a question of civil rights…”, which was the reason for the Commission’s conclusion, in my judgment shows that that conclusion was focusing not on the question whether the prisoner enjoyed a “civil right.” but rather on whether the categorisation decision was a determination of any such “civil right.”

This interpretation is in my view supported by the fact that earlier in the judgment the Commission dealt separately with the question whether the differences in treatment of prisoners classified as Category A fell within the scope of the rights and freedoms ensured by the Convention:

“In so far as the applicant is complaining of his classification as a Category A prisoner and the differences in treatment of those so classified, the Commission considers that this is not a matter which falls within the scope of the rights and freedoms ensured by the Convention. But in so far as the applicant is also complaining about the conditions of his detention and their cumulative effect an issue might arise under Article 3 of the Convention which the applicant has invoked.”

It is in my judgment arguable that in that passage the Commission was by implication holding that the difference in treatment of Category A prisoners as against other category prisoners did not involve “civil rights” such as are capable of attracting the protection of Article 6. On the other hand it may be that it was doing no more that holding that the benefits lost by a Category A prisoner did not constitute rights protected by other Articles of the Convention such as Article 8 and that it was not addressing the question of whether those benefits constituted autonomous civil rights within the meaning of Article 6. However although there was no explicit reference to autonomous civil rights as distinct from rights specifically protected by other Articles of the Convention, it would be surprising if the Commission had been of the view that the benefits did or might constitute civil rights in the sense contemplated by Article 6 given that it went on to consider whether they were protected by Article 3.

Be that as it may it is in my view clear that that is not the passage of the Commission’s judgement to which Maurice Kay LJ was referring. My conclusion is further supported by the fact that in the next paragraph of his judgment he cited in further support of his conclusion that the Strasbourg authorities were not inimical to his analysis the decision of the Commission in McFeeley v United Kigdom [1981] 3 EHRR 161 at paragraphs 102-103:

“The applicants have also contended that the various adjudications against them concerned the “determination” of “civil rights”. In this respect they have referred to their rights of… association…

The Commission observes that the awards of punishments against the applicants were occasioned by… offences against the prison discipline and made after disciplinary adjudication. These proceedings accordingly did not involve determination of civil rights as that concept is understood in Article 6” (Maurice Kay LJ’s emphasis). [41]

Both the content of the Commission’s judgment and Maurice Kay LJ’s emphasising of the word “accordingly” in my judgment show that this was and was taken by him as being a decision not that the applicants did not have “civil rights” but rather that the adjudications against them did not constitute determinations of such “civil rights”.

That interpretation is in my view further supported by the next paragraph in Maurice Kay LJ’s judgment in which he said that he considered:

“this approach to the internal decision-making stage to be un-contradicted by later Strasbourg authority and consistent with the modern domestic jurisprudence on discretionary administrative decision-making such as A v London Borough of Croydon [2008] EWCA 1445 per Ward LJ at paragraphs 50-59 and Ali v Birmingham City Council [2010] 2 AC 39, per Lord Hope at paragraph 49. Although these cases were concerned with welfare or economic rights, as opposed to the imposition of sanctions, the conceptual matrix of administrative discretion is the same.”

Again in that paragraph in my judgment Maurice Kay LJ was addressing not the question whether civil rights exist but rather whether the decision was a determination of any civil rights that may have existed.

If my interpretation of Maurice Kay LJ’s conclusion in paragraph 41 of his judgment is correct it has important consequences both on the question whether the Claimant enjoyed “civil rights” and on the question whether the decision to transfer him to Broadmoor constituted a determination of any such rights.

As to the former it would follow that Maurice Kay LJ was not basing his conclusion that association with other prisoners was a privilege rather than a civil right on a conclusion that cases such as Enea and Stegarescu are not authority for the proposition that the rights in issue in those cases were or might have been autonomous civil rights for the purpose of Article 6. That is because the aspect of the decision in Brady and X which he said had not been questioned in any subsequent authorities must be the conclusion that there was no determination rather than that there were no civil rights. In other words he cannot have been intending to hold that cases such as Enea and Stegarescu did not question whether there are or might be civil rights in the context of those cases.

As to the latter it would follow that Maurice Kay LJ considered that the decision in Brady and X tends to support his conclusion in paragraph 37 of his judgment that at the point of the administrative decision whether to segregate a prisoner there is as yet no dispute or contestation about it and that those decisions remain good law notwithstanding the subsequent decisions in Enea and Stegarescu which he considered did not question those decisions and were not inimical to his conclusion. I return to this aspect below.

As I read Mr Chamberlain’s submissions set out above he did not take issue with the proposition that a patient transferred from a medium to a high security hospital enjoys certain civil rights which may be restricted in a high security hospital. That was implicit in his submission that (a) in most respects transfer to a high security hospital does not entail restrictions on civil rights even though it triggers a legal regime in which (subject to the proper safeguards) decisions may be taken which do restrict those rights and (b) that it is true that transfer to a high security hospital does of itself trigger restrictions on one right recognised as a “civil right” – namely the right to send and receive correspondence without monitoring.

The reason why he submitted that Article 6 is not engaged was not that there were no civil rights capable of being determined but rather that in respect of the first category any restrictions on those rights are not entailed by transfer to a higher security hospital but only by subsequent decisions which may lawfully be taken by such a hospital (and from which there is a right of appeal to an independent Tribunal) and in respect of the second category the fact that a decision to transfer a patient triggers restrictions on the recognised “civil right” to send and receive correspondence without monitoring does not on its own transform an essentially administrative decision into a contestation for the purposes of Article 6.

In Enea the applicant had been sentenced to imprisonment for membership of a Mafia-type criminal organisation and other offences. In 1994 the Minister of Justice issued a decree ordering that he be subject to a special prison regime for which provision was made in an Italian Statute, which allowed application of the ordinary prison regime to be suspended in whole or in part for reasons of public order and safety.

The decree imposed the following restrictions: a maximum of a single one hour visit by family members per month, no meetings with non-family members, prohibition on using the telephone, no sums of money above a fixed amount to be received or sent out, no more than two parcels to be received per month, no more than two hours’ outdoor exercise per day and all his correspondence was to be monitored subject to prior authorisation by the judicial authorities.

The application of the special regime was subsequently extended on nineteen occasions by decrees. In 2005 the applicant was placed by the prison authorities in a high supervision EIV unit. Such units are for prisoners who present a degree of danger such that their detention in a medium high security unit would be inadequate to ensure public order and safety. The danger posed by such prisoners stems in particular from their involvement in terrorist crime, the nature or number of the crimes committed, their attempts at escape or serious acts of violence perpetrated by them against other prisoners or prison officers. Such units are run along the same lines as high security units. Contact with prisoners in other units is prohibited and supervision is particularly tight. Particularly stringent measures are put in place aimed at separating them from other prisoners and keeping them under supervision. In addition activities such as outdoor exercise, visits, vocational training and sport take place in a pre-defined area. (paragraphs 45-47).

The Grand Chamber held that there were two aspects to the question in issue: whether there was a “dispute” (contestation) over a “right” and whether or not the right in question was a “civil” one. As to the first aspect the Grand Chamber held that there was a “dispute (contestation) over a right”. It said that this followed from three factors. They included first that Article 6(1) applies only to a genuine and serious “dispute”. The “dispute” may relate not only to the actual existence of a right but also to its scope and the manner of its exercise, and the outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6(1) into play. (paragraph 99).

They also included the fact that most of the restrictions to which the applicant was allegedly subjected related to a set of prisoners’ rights which the Council of Europe has recognised by mean of the European Prison Rules. Although the Rules were not legally binding on the member States the Grand Chamber observed that “the great majority of them recognised that prisoners enjoy most of the rights to which it refers and provide for avenues of appeal against members restricting those rights” (paragraph 101).

As to the second aspect, the Grand Chamber reiterated that “Article 6(1) extends to “contestation” (disputes) over civil “rights” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention”. It also noted that “some of the restrictions alleged by the applicant – such as those restricting his contact with his family and those affecting his pecuniary rights – clearly fell within the sphere of personal rights and were therefore civil in nature.” (Paragraph 103).

The Grand Chamber identified the balance which must be struck in the following terms:

“The Court is well aware that it is essential for States to retain a wide discretion with regard to the means of ensuring security and order in the difficult context of prison. However, it reiterates that “justice cannot stop at the prison gate and there is…no warrant for depriving inmates of the safeguards of Article 6”…” (Paragraph 105).

In King Maurice Kay LJ cited the first but not the second sentence of this paragraph.

The Grand Chamber reached two conclusions.

“Any restrictions affecting these individual civil rights must be open to challenge in judicial proceedings, on account of the nature of the restrictions (for instance, a prohibition on receiving more than a certain number of visits from family members each month or the ongoing monitoring of correspondence and telephone calls) and of their possible repercussions (for instance, difficulty in maintaining family ties or relations with non-family members, exclusion from outdoor exercise). By this means it is possible to achieve the fair balance which must be struck between the constraints facing the State in the prison context on the one hand and the protection of prisoners’ rights on the other.

In conclusion, the Court considers that the complaint concerning the restrictions to which the applicant was allegedly subjected as a result of his being placed in an EIV unit is compatible ratione materiae with the provisions of the Convention since it relates to Article 6 under its civil head.” (Paragraph 106 and 107). (emphasis added).

Accordingly the Grand Chamber declared the complaint admissible (ibid).

However it also concluded that:

“While it is true that a prisoner cannot challenge per se the merits of the decision to place him or her in an EIV unit, an appeal lies to the courts responsible for the execution of the sentences against any restriction of a “civil” right (affecting, for instance, a prisoner’s family visits or correspondence). However, given that in the instant case the applicant’s placement in the unit did not entail any restrictions of that kind, even the possible lack of such a remedy could not be said to amount to a denial of access to a court.” (Paragraph 119).

In King Maurice Kay LJ following his review of Enea, Stegarescu and two other decisions of the ECHR stated that it was apparent from some of the Strasbourg cases that their gravamen was a lack of effective access to the domestic courts.

“Enea (which, as a decision of the Grand Chamber should be treated as the leading Strasbourg authority) was also concerned with the application of Article 6 at the level of the judicial proceedings in which restrictions on personal rights were challenged. Stegarescu, too, arose out of shortcomings in the applicable domestic judicial process. …it is not surprising that, where there are shortcomings in the ultimate judicial process, the spotlight turns back on the preceding administrative decision-making process which, as in the present cases, is not by itself Article 6 compliant. [35].

On the question whether there is a “civil right” of association with other prisoners Maurice Kay LJ described it as a difficult one which in his view is not unequivocally established by the Strasbourg cases as a matter of Convention law. “They generally emphasise rights such as family visits.” [38].

In his dissenting judgment Elias LJ recorded the submission of counsel for the Secretary of State that the European authorities reviewed by Maurice Kay LJ including Enea and Stegarescu focused on the right to receive family visitors or to deal with finance and similar matters touching more directly on personal rights than the right of prisoners to associate with their fellow prisoners which he submitted they did not support as a civil right. [84]. The implication as it seems to me was that the Secretary of State accepted that those authorities held that the right to receive family visitors is a civil right for the purposes of Article 6.

He also stated that he did not consider that the comparison with welfare or other discretionary benefits is apposite.

“The right to associate with whomsoever one pleases is a fundamental aspect of personal integrity. …as Lord Steyn observed in R v Home Secretary ex.p. Simms [2000] 2AC115, 120G:

“A convicted prisoner in spite of his imprisonment retains all his civil rights which are not taken away expressly or by necessary implication”

“I accept that there is no clear and unequivocal decision of the ECtHR which establishes this residual freedom of association as a civil right. All the cases where civil rights have been found to have been engaged have been determined on the basis that the disciplinary sanction affects other rights more readily recognisable as private civil rights.” [86][87].

In the latter sentence he was explaining the same view as Maurice Kay LJ.

In Stegarescu the two applicants had been held in solitary confinement for seven months in a security cell and complained that there was no appeal route allowing them to contest their placement in a special security regime. The European Court said:

“The Court observes first that the placement of the petitioners in a security cell led in particular, in addition to the solitary confinement itself, and according to the information provided by the petitioners and not contested by the Government, to the restriction of visits to one hour a week – and only face to face meetings in a visiting room with a glass partition – to the restriction of exercise to one hour a day and the impossibility, regarding the first petitioner to study and sit exams.

In the eyes of the Court, these are restrictions “affecting the rights of a civil character of the individual”. Such limitations of the rights of the detainees, as well as the repercussions they can lead to, must be seen as coming under the notion of “rights of a civil character” (Enea, aforementioned, paragraph 106).” (Paragraphs 37 and 38).

The European Court held that Article 6(1) applied and found that there had been a violation of it. It stressed that:

“…the existence of a judicial procedure allowing to contest acts having important repercussions on the civil rights of the detainees is necessary to maintain a fair balance between on the one hand the taking into account the constraints of the prison world which the State must face and on the other hand the protection of the rights of the detainee (see…Enea aforementioned paragraph 106).” (Paragraph 50).

Between the decision of the Divisional Court in King and that of the Court of Appeal which overturned it the European Court decided the case of Boulois v Luxemburg, Application 37575/04, 14 December 2010. Maurice Kay LJ summarised the decision in the following terms:

“The applicant was serving a long sentence for serious offences. He submitted several requests for “prison leave” in order to carry out tasks in preparation for his eventual release. They were refused by Attorney General. The domestic courts rejected his applications for judicial review on the ground that they had no jurisdiction. The ECtHR held by a bare majority that the circumstances involved the determination of a civil right and that the absence of a judicial remedy involved a violation of Article 6. The Court stated (at paragraph 64):

“Whilst it is true that the impact on his private life was indirect, it was nevertheless beyond doubt…the Court considers that the restriction alleged by the applicant, in addition to its pecuniary implications, related to his personal rights, in view of the significance of the applicant’s interest in resettling in society. In that connection it is of the view that the applicant’s social rehabilitation was crucial to the protection of his right to lead “a private social life” and develop his social identity.”

This passage was expressly informed by the European Prison Rules. The violation of Article 6 was identified (at paragraph 78) as “the lack of any decision on the merits [which] nullified the effect of the Administrative Court’s review of the Prison Board’s decision.”

Any impression that that was a somewhat generous decision is fortified by the vigorous dissent of Judge Raimondi (joined by Judges Jociene and Sajo), paragraph 10 of which is in these terms:

“In my view the respondent Government were correct in pointing to the discretionary nature of decisions by the domestic authorities concerning requests for prison leave and in concluding that, where the authorities have discretion as to whether or not to grant a particular concession, that concession does not amount to a “right” and, accordingly, Article 6…does not apply to proceedings concerning its granting or otherwise.”

He added that the European Prison Rules contained “recommendations” which “by definition” are not binding. This dissenting opinion resonates with Mr Grodzinski’s submissions on this issue.” (Paragraphs 31 and 32).

In his dissenting judgment Elias LJ stated that the European Court held that the refusal to grant a request for prison leave constituted the determination of a civil right both because it was a right which, subject to certain conditions being met, was granted by the law of Luxemburg, and because it was a right recognised in the European Prison Rules. He said that the Court held at paragraph 64 that the purpose of the request was to promote the prisoner’s social rehabilitation which was “crucial to the protection of this right to lead a “private social life””. He said that it was pertinent to observe that the Court noted at paragraph 57 that whilst the Convention institutions had traditionally taken the view that the manner of execution of custodial sentences did not fall within the scope of Article 6, “the case law has evolved in relation to proceedings concerning detention in prison”.

Elias LJ stated that in his view:

“…this case supports the conclusion of the Divisional Court, confirms that some of the older cases are no longer reliable, and indeed adopts a particularly broad – some might say extravagant – concept of civil rights in the prison context. In particular, in view of the recent jurisprudence I would not place weight on the McFeeley case decided more than thirty years ago by the European Commission on Human Rights. The rights relied on in that case, which involved the dirty protest by IRA prisoners, were all Convention rights; it was not claimed that any other independent civil rights were an issue. Yet there can be no doubt that some of the rights affected by the sanctions imposed in that case, such as visiting rights and financial interests, would now be seen as civil rights attracting Article 6 safeguard.” [88].

In Enea the Grand Chamber held that restrictions of the applicant’s contact with his family clearly fell within the sphere of personal rights and were therefore civil in nature (paragraph 103). I take this to mean that it was the applicant’s right of contact with his family rather than the restrictions thereon which were held to be personal rights and therefore civil in nature and thus falling within the protection of Article 6(1). The Grand Chamber held that any restriction affecting these individual’s civil rights must be open to challenge in judicial proceedings on account both of the nature of the restrictions and of their possible repercussions. The example given of the former were a prohibition on receiving more than a certain number of visits from family members each month or the ongoing monitoring of correspondence and telephone calls. The examples given of the latter were difficulty in maintaining family ties or relationships with non-family members and exclusion from outdoor exercise. (paragraph 106).

Unless prevented by other authority binding on me I would hold that the effect of the decision in Enea (which, as Maurice Kay LJ held should, as a decision of the Grand Chamber, be treated as the leading Strasbourg authority) is that a person’s right to maintain contact with his family is a civil right for the purposes of Article 6(1) and that any prohibition on receiving more than a certain number of visits from family members each month or the ongoing monitoring of correspondence and telephone calls constitutes a restriction on that right.

In my judgment there is nothing in the ratio decidendi of the decision of the majority of the Court of Appeal in King which prevents me from reaching this conclusion.

The right contended for by the Claimants in King as constituting a civil right protected by Article 6 was a right to associate with other prisoners. The first and obvious point is that that is a different right to those contended for by the Claimant in this case. The Claimant in this case contended for two categories of civil rights. The first was a right not to be placed in high security unless there is sufficient justification. The second was a right not to have telephone calls monitored or incoming correspondence withheld and the right to have post delivered and to pack post in private. Neither category of rights contended for by the Claimant in this case was in issue in King and Maurice Kay LJ did not in his judgment hold that either category did not constitute a civil right such as is protected by Article 6(1).

Second the reasoning which led to Maurice Kay LJ’s conclusion that there is no civil right to associate with other prisoners was based on a conclusion that such association is a normal privilege that is subject to withdrawal in accordance with the Prison Rules, particularly those permitting cellular confinement or segregation which invest governors with discretionary powers, rather than a right. No such right was conferred by the Prison Rules expressly nor could it be said to arise by implication. [30] [40]. It does not seem to me that that reasoning necessarily compels the conclusion that it would be wrong to interpret the Grand Chamber in Enea as having held that the rights to which I have referred are civil rights for the purpose of Article 6(1).

Nor do I consider that Maurice Kay LJ’s observations as to the effect of the Strasbourg authorities to which I have referred above prevent me from interpreting the decision in Enea in the manner set out above. In my opinion for the reasons which I have already explained earlier the issue to which those observations was addressed was the issue of determination rather than the issue of the existence of the civil rights.

As Elias LJ pointed out all the cases where civil rights were found to have been engaged were determined on the basis that the disciplinary sanction affected other rights more readily recognisable as private civil rights than the right to freedom of association contended for in King. Those cases included Enea.

The Claimant’s submission that a detained patient retains a right not to be placed in high security unless there is sufficient justification appeared to be based on the statement in the Broadmoor Admission Guidelines that “it is an unacceptable infringement of a patient’s rights to detain them in a higher level of security than they require.” (paragraph 4.1 of Appendix 1). That formulation appears to recognise that the so called “right” referred to is not an absolute right but rather one qualified by reference to an acknowledgement that a patient has no absolute right not to be detained in high security if that is “required”. It is different from for example a right not to have correspondence or telephone calls monitored, any restriction on which according to Eneaipso facto engages Article 6(1).

In my judgement the mere fact of transfer to a high security hospital would not for that reason alone without more infringe a patient’s civil right protected by Article 6(1) not to be detained in a higher level of security than he or she requires. That conclusion is in my opinion implicit in the decision in Brady that “in so far as the applicant is complaining of his classification as a Category A prisoner and the difference in treatment of those so classified the Commission considers that this is not a matter which falls within the scope of the rights and freedoms ensured by the Convention” (paragraph 1). That is despite the fact that it could be said that a prisoner has a right not to be allocated to a higher category than he or she requires. If classification as a Category A prisoner and the difference in treatment of those so classified is not a matter which falls within the scope of the rights and freedoms ensured by the Convention (including, it is to be inferred by Article 6) why should the classification of a detained patient as one who requires treatment in a high security hospital be such a matter?

I touch on this in the context of the second aspect of whether Article 6.1 is engaged in this case, namely whether a decision to transfer a patient from a medium to a high security hospital constitutes a determination of the patient’s civil rights and whether there is at that stage a dispute or contestation about them. I now turn to that aspect.

In Enea in the passage cited above the Grand Chamber held that in order to satisfy the requirement of identifying a “dispute” (contestation) over a right, “the outcome of the proceedings must be directly decisive for the right in question, mere tenuous connection or remote consequences not being sufficient to bring Article 6(1) into play.” (Paragraph 99).

This distinction between an outcome of the proceedings being directly decisive for the right in question on the one hand and having only a tenuous connection or remote consequence for it on the other was reflected in the decision in that case. Thus, even though a prisoner could not challenge per se the merits of a decision to place him in an EIV unit, it was held that, because in that case the applicant’s placement in the unit did not “entail” any restriction of his civil rights, for example affecting family visits or correspondence, even the possible lack of such a remedy could not be said to amount to a denial of access to court. By contrast an appeal did lie to the courts responsible for the execution of sentence against any restriction of a civil right affecting a prisoner’s family visits or correspondence.

There is in my judgment a clear parallel between that decision and the distinction which it reflected and certain of the rights which the Claimant submits were determined adversely to him by the decision to transfer him to Broadmoor. Thus the power to intercept telephone calls of patients at high security hospitals is only exercisable if the interception is done pursuant to directions given under section 8 of the National Health Service Act 2006. Direction 34 of the 2011 Directions authorises the interception of telephone calls only after a risk assessment has been carried out.

In my judgment Mr Chamberlain is right that any restriction on a patient’s right to make unmonitored telephone calls occurs only if and when a decision is made under Direction 34 and not on transfer. It does not follow that a direction will be made in respect of every patient transferred to a high security hospital. Whether it is made will depend on the outcome of a risk assessment. Moreover just as in Enea the prisoner had a right to appeal to an independent court against any decision to restrict his civil right not to have his calls monitored, so where a high security hospital decides to record or monitor a patient’s telephone calls the patient has a right to seek review of that decision before the CQC which is an independent regulator, with whose directions the hospital is required by Direction 34(9) to comply (although of course that is relevant not to the question of whether the decision to transfer constitutes a contestation of the patient’s right to unmonitored calls but rather to the question of whether, if it does, there are sufficient safeguards to prevent there being a violation of that right).

Similarly although high security hospitals have the power to withhold mail sent to or by patients pursuant to section 134(1) and (2) of the 1983 Act no restriction on a patient’s civil right to send and receive post occurs unless and until the decision is taken to withhold a particular item. The restriction does not apply automatically on transfer to the high security hospital. In the language of Enea the decision to transfer the patient to the high security hospital does not “entail” such a restriction. Further any decisions which are subsequently taken to withhold post are reviewable by the CQC which can direct that the correspondence in question should not be withheld – see section 134A of the 1983 Act and regulation 30 of the 2008 Regulations.

In my judgment it follows that even if I am right that those rights are civil rights capable of being engaged by Article 6(1) they are not determined within the meaning of Article 6(1) by virtue of a decision to transfer a patient from a medium to a high security hospital. Any such engagement would not occur until and unless the relevant direction or decision was made to withhold mail sent to or by the patient or to direct that his or her telephone calls should be intercepted.

If I am right thus far, there remain two putative bases on which it is suggested by the Claimant that the decision to transfer him to Broadmoor constituted a determination of his civil rights within Article 6(1). The first arises from the submission that the decision was likely to delay the date of his ultimate discharge from detention. The second is based on the submission that transfer to a high security hospital of itself triggers and entails restriction on one right recognised as a “civil right” – namely the right to send and receive correspondence without monitoring.

As to the first basis, I have already accepted in the context of the common law duty of fairness the Claimant’s submission that the decision to transfer him from a medium to a high security hospital was likely to delay his ultimate date of discharge from detention under the 1983 Act. I have also accepted his submission in that way that the decision affected the liberty of the subject. It does not, however, in my judgment follow that for that reason the decision to transfer him to Broadmoor determined an autonomous civil right to liberty recognised by Article 6(1).

In West the appellants who had been recalled to prison for breach of licence conditions challenged decisions of the Parole Board not to recommend their re-release. A majority of the House of Lords held that it was not necessary to decide whether the claimants’ challenges to revocation of their licences had involved “the determination of their civil rights and obligations” under Article 6(1) since determinate sentence prisoners wishing to challenge the revocation of their licences had the protection of the Board’s common law duty of procedural fairness. (Paragraphs 44, 90 and 91).

Lord Hope however, in a minority on this point, held that what he described as “the Article 6 civil right” is not infringed by proceedings of the kind in issue in that case so long as the individual has access to the domestic courts to assert his right to liberty. The proceedings of the Parole Board did not deprive the appellants of that right of access. (paragraph 81). The context suggests that ‘the Article 6 civil right’ to which Lord Hope was referring was a right to liberty.

By parity of reasoning in this case the decision to transfer the Claimant to Broadmoor did not deprive him of access to the domestic courts to assert his right to liberty. In his case, in contrast to the appellants who were recalled to prison in West, his ‘right to liberty’ was suspended on the making of the hospital order which authorised his detention under the 1983 Act. The restoration of that ‘right to liberty’ was contingent, both before and after the decision to transfer him to Broadmoor was made, on the statutory criteria for involuntary detention no longer being satisfied. His right of access to the Mental Health Tribunal by means of an application for the purpose of securing from that independent tribunal a binding order requiring his discharge as no longer meeting the statutory criteria was unaffected by the decision to transfer him to Broadmoor.

The sense in which it could be said that the decision to transfer him to Broadmoor affected a ‘right to liberty’ lay in the fact that in practice, for the reasons which I set out in the section on the common law duty of fairness, it was likely to lead to a delay in his ability to secure his discharge from detention by demonstrating that the statutory criteria were no longer satisfied.

In my judgment that connection between the decision to transfer the Claimant to Broadmoor and the continuation of his loss of liberty is too remote for it to be said that the decision determined a civil right of liberty. In West counsel for the appellants submitted that it was clear that the right to liberty was a civil right within the meaning of Article 6 (1) and that the appellants’ civil right to liberty was engaged because they were in a state of actual liberty before they were recalled and because they would have been entitled to sue for false imprisonment if they had not been released after they had completed the relevant proportion of their sentences.

Lord Hope however stated that in his opinion it did not follow from the fact that the right to liberty can be described generally as a civil right that the appellant’s civil rights within the meaning of Article 6(1) were engaged in that case. He stated:

“The question whether this Convention right is engaged, if at all, has to be decided in the light of the proceedings that are in issue and the nature of the dispute. (paras 78 and 79).”

To similar effect were Lord Hoffmann’s dicta in RB (Algeria), in the passage of his speech which I have quoted, that the European court has consistently said not only that proceedings concerning the validity of a deportation order do not engage Article 6 but that it makes no difference that the order for deportation has an incidental effect upon rights under other Articles of the Convention and that it is clear that the criteria for the European Court in deciding whether Article 6 is engaged is the nature of the proceedings and not the articles of the Convention which are alleged to be violated. (para 175).

It is significant in the present context that the argument rejected by Lord Hoffmann in that passage was that issues about various Convention rights which might arise incidentally in connection with the making of the deportation order (including whether return to the nation of nationality would infringe rights under Article 6 as well as Article 3, 5 or 8) required the procedure for the determination of the validity of the deportation order to conform to the requirements of Article 6. The question of whether those Articles would be infringed should it was said should be determined by a procedure which satisfies Article 6. (para 174).

The significance lies in the fact that rights protected by Article 6 were among those as to which Lord Hoffmann held that in order for proceedings to engage the procedural requirements of Article 6 it is not sufficient that the proceedings have an incidental effect on them. This is in line with the decision of the Grand Chamber in Enea that in order to satisfy the requirement of identifying a contestation over a right the outcome of the proceedings must be directly decisive for the right in question, mere tenuous connection or remote consequences is not being sufficient to bring Article 6(1) into play.

In RB (Algeria) Lord Hoffmann explained that the appellants’ challenge in that case to their deportation in proceedings in SIAC did not engage Article 6 merely because it was asserted that the deportation could lead to a potential violation of Articles 5, 6 and 8. He said:

“If the proceedings had been an action in tort for a breach or threatened breach of Article 3, they would certainly be asserting a civil right and Article 6 would be engaged… Similarly for actions for violations of Article 8. But these proceedings are not of that nature. They are to challenge the validity of deportation orders. As I have said, it is the nature of the proceedings which decides whether Article 6 is engaged or not.” (para 178).

Applying that analysis to a decision whether to transfer a patient from a medium to a high security hospital, the issue to be determined in that decision is whether the patient meets the admissions criteria of the high security hospital and whether no lesser degree of security will afford the necessary protection to patients, members of staff and other persons. If the answer to those questions is in the affirmative, it would not be a reason for deciding not to transfer the patient that the transfer would or might delay his ultimate date of discharge from detention under the 1983 Act.

In Brady the applicant accepted without qualification that the weight of the crime for which he was convicted justified permanent imprisonment and he did not seek removal from Category A classification so as to become eligible for parole. Thus the indirect effect of being placed and/or maintained in Category A on the ultimate date of his release from prison did not form part of his Article 6 challenge. The rights which he alleged were infringed did not include the right to liberty. To that extent Brady is probably not authority to the effect that a decision to place a prisoner in Category A and/or to maintain that categorisation does not determine his civil right to liberty.

Nonetheless, as already pointed out, the Commission held in that case that, in so far as the applicant was complaining of his classification as a Category A prisoner and the differences in treatment of those so classified, that was not a matter which falls within the scope of the rights and freedoms ensured by the Convention. It might have been expected that if the Commission had been of the view that a decision to classify a prisoner other than one on a whole life tariff as Category A did or might determine his civil right to liberty by reason of the fact that it would delay his ultimate date of release it would have given an indication to that effect. At all events it was not suggested by the Claimant that there is any domestic or European authority to that effect. Given the intense scrutiny to which Category A decisions have been subjected in domestic cases since Brady it is striking that despite the plethora of rulings as to the existence and scope of the common law requirements engaged by the decision making process, I was shown no case in which it has been held that there is or even suggested that there might be an Article 6 civil right to liberty which is engaged.

It is true that there is a material difference between placing a prisoner in Category A and deciding to transfer a patient detained under the 1983 Act from a medium security to a high security hospital in that a patient so transferred may not have been detained pursuant to a conviction for any criminal offence. To that extent it could be argued that the importance to be attached to the protection of the contingent right to liberty of a patient transferred under the 1983 Act ought to be even greater than in the case of a prisoner placed into Category A.

Nonetheless in my view that distinction does not justify a different analysis when it comes to answering the question whether the connection between the decision to transfer and the indirect effect of the decision in delaying the likely ultimate date of release is too remote for it to be said that the decision is a contestation as to the patient’s right of liberty which is thereby determined so as to engage Article 6.

It was in my judgment implicit in the acceptance by Mr Squires on behalf of the Claimant that the mere fact of prison categorisation as in Brady does not determine or affect civil rights, that among the civil rights not determined or affected by the mere fact of prison categorisation is the right of liberty. It follows for the reason which I have given that in my view the logic of that acknowledgement applies to any suggestion that the transfer of a patient to a high security hospital from a medium security hospital determines or affects his civil right to liberty by reason of a likely delay in the ultimate date of his or her discharge from detention.

I am conscious that there is an apparent contrast between this conclusion and the importance attached in the authorities to which I have referred to the likelihood of a person being seriously adversely affected by a decision as a factor pointing to the existence of a common law duty of fairness. If the likelihood of such serious adverse effect engages a common law duty of fairness why does is not also engage an Article 6 right? The technical answer is that that is the effect of the relevant authorities in these two areas. A broader answer may be found in the additional right conferred by Article 6 to a fair and public hearing by an independent and impartial tribunal established by law in the determination of civil rights that fall within the protection of Article 6. The common law duty of fairness may be engaged in a variety of circumstances in which there is no need as a matter of policy for access to an independent and impartial tribunal at a public hearings including because the decision does not determine a right recognised as a civil right within the meaning of Article 6.

In Maftah the Lord Chief Justice, echoing comments to similar effect by Sedley LJ, stated that he would need a great deal of persuasion to accept that the standard of fairness set by the common law for the determination of issues arising in civil litigation is any less robust that the standards set by Article 6 of the Convention. (paragraph 32). There is in my judgement no inconsistency between that proposition and the proposition that because the determination of civil rights protected by Article 6 affords a remedy not available to all persons affected by decisions made by public officials there should be a more stringent requirement of a direct and proximate relationship between the civil right and the proceedings which determine it.

That leaves the final basis on which it is suggested that the decision to transfer the Claimant to Broadmoor constituted a determination of his civil rights within Article 6(1), namely the submission that transfer to a high security hospital of itself triggers and entails restriction on one right recognised as a “civil right” – namely the right to send and receive correspondence without monitoring.

As mentioned Mr Chamberlain accepted that transfer to a high security hospital does of itself trigger restrictions on one right recognised as a “civil right” namely the right to send and receive correspondence without monitoring. That is because interception of postal communications is mandatory at high security hospitals – see directions 26-29 of the 2011 Directions, whereas medium security hospitals have no power to intercept mail. He thus appeared to accept that in that limited respect transfer to a high security hospital itself triggers restrictions on a right recognised as a “civil right” within the meaning of Article 6(1). The reasons why he submitted that nonetheless Article 6 is not engaged by the decision to transfer was that the fact that it triggers restrictions on a “civil right” does not on its own transform an essentially administrative decision into a contestation for the purposes of Article 6. There is he said no general principle that the procedural safeguards guaranteed by Article 6 necessarily apply to any administrative decision which has an incidental effect on either Convention rights or rights recognised as “civil rights”.

In support of these submissions he prayed in aid the authorities which hold that a mere incidental effect on a Convention or civil right does not mean that proceedings are for that reason a contestation about or determination of it (Enea, King, RB (Algeria) and Lord Hope in West) and authorities that distinguish between administrative decisions and determinations of disputes about civil rights (Brady, X, King, R (A) v Croydon and Ali v Birmingham CC).

In my view the Claimant’s Article 6 claim turns on whether or not these submissions are well founded. The matter is complicated by the fact that there is logically no necessary coincidence between the question whether a decision has a direct or decisive effect on a civil right or merely a remote or incidental effect on it and the question whether the nature of the decision is a dispute concerning the right. Thus in Enea the Grand Chamber appeared to identify two separate conditions precedent for a determination: the dispute must not only be directly decisive for the right in question, it must also relate to its existence or to its scope and the manner of its exercise. (Paragraph 99).

This is illustrated by the decision in Brady. It appears that at least some of the restrictions about which the applicant complained were the direct consequence of his having been categorised a Category A prisoner. “The applicant also objects to the fact that, as a Category A prisoner, he is not allowed unsupervised visits…” (paragraph 15). (Emphasis added). That appears to be the premise upon which the Commission based its decision: “The applicant has complained of his conditions of detention as a Category A prisoner, i.e. a prisoner who is subject to strict security measures. In so far as the applicant is complaining of his classification as a Category A prisoner and the differences in treatment of those so classified…” (paragraph 1, The Law). To that extent there is a clear parallel with the fact that, as conceded by Mr Chamberlain, the decision to transfer a patient triggers the patient’s exposure to mandatory interception of his post.

However that circumstance did not prevent the Commission from holding that the decision of the Category A Committee to classify a prisoner as Category A in view of the security risk which he presents is not a determination of his civil rights under Article 6(1) “not being a question of civil rights or obligations or criminal charges but an administrative classification”. (paragraph 2).

Thus it would appear that the effect of the decision in Brady is that even if a decision does have a direct effect on a person’s civil rights it does not for that reason automatically engage Article 6. Whether or not it does so depends on whether the decision is a determination of a dispute or contestationabout that civil right or is merely an administrative classification. The conclusion that a decision whether a prisoner should be categorised as Category A is not a determination of a dispute or contestation about the restrictions on his civil rights which are triggered by his being placed in Category A led the Commission to hold that the decision making process did not engage Article 6 even though the restriction, as it appeared to accept, would automatically flow from the decision.

In my judgment not only did the majority of the Court of Appeal in King interpret the decision in Brady and X in that way but it also held that it remains good law notwithstanding the decisions in Enea¸ Stegarescu and Boulois. That in my judgment is the effect of paragraph 41 of Maurice Kay LJ’s judgement in which he held that the fact that the decisions in X and Brady classify security categorisation decisions as “administrative” rather than as determinations of disputes about civil rights tended to support his analysis and that the Court of Appeal had not had its attention to drawn to any subsequent questioning of those authorities, the latter observation by implication constituting a conclusion that the decisions in X and Brady remain good law notwithstanding the decisions in the later European cases to which I have just referred and which were not only referred to the Court of Appeal but analysed by it.

On its face in my judgement the decision in Brady and the conclusions by the majority of the Court of Appeal in King that it remains good law compel the conclusion that the decision in this case did not engage Article 6 notwithstanding the fact that it automatically exposed the Claimant to the loss of his civil right not to have his post intercepted. The latter fact is a necessary but not sufficient condition for a finding that it constituted a determination of his civil right.

The Broadmoor Admissions Guidelines state that when an application is made for a bed at Broadmoor there are three main issues which need to be considered: the presence or absence of a recognisable mental disorder, liability to detention under the 1983 Act and risk to others. In the case of a patient such as the Claimant detained in a medium secure hospital pursuant to a hospital order following conviction for a criminal offence the answer to the second issue will speak for itself and the answer to the first issue is likely to be implicit in the answer to the second. Thus the key issue is likely to be risk to others. This is reflected in paragraph 4 of the Guidelines which states that the high security available within Broadmoor is necessary to detain patients who could not be safely contained within the security available at a medium secure unit. It is also reflected in the statement in paragraph 4 referred to earlier that in considering what constitutes the criteria for detention in conditions of high security one or more of specified behaviours in addition to a mental disorder must be present before admission to Broadmoor can be contemplated. It will be recalled that those behaviours are evidence of behaviour and/or conduct likely to result in harm to others.

In my judgment the nature of the decision as to whether a patient should be transferred is the forming of a judgment as to whether these criteria are met and in particular whether the patient constitutes a risk to others such that he could not safely be contained within the security available at a medium secure unit.

It is true that the process of arriving at an answer to that question is likely to involve an assessment of whether such risk as the patient is found to constitute is capable of being contained without the availability of the restrictions which are available in a high security but not a medium security hospital. However it does not seem to me that that of itself means that the decision is a decision determining a dispute or contestation about the patient’s civil rights, for example, not to have post intercepted.

In this respect the analysis in Brady is in my view applicable. Adopting the language of the Commission the decision to transfer a prisoner in view of the security risk which he presents is not a determination of his civil rights, it not being a question of civil rights but an administrative classification. In the case of the Categorisation Committee the issue it has to decide is whether the prisoner if he escaped would represent so serious a risk to the public that the Category A regime is necessary to render such escape impossible. Although the effect of deciding that a prisoner should be in Category A may and probably will be to restrict certain of his civil rights the Commission held that that did not mean that the decision was “a question of civil rights”, which I take to mean a decision about civil rights.

In a later passage of his judgment in King in which he explained why in his view the fact that a decision to segregate a prisoner might engage his Article 8 rights did not mean that the decision engaged the procedural protection afforded by Article 6, Maurice Kay LJ stated:

“Unlike cases such as S and BC which were concerned with the fairness of judicial proceedings, the present case is concerned with administrative decision-making in a specific context which may lead to a subsequent challenge in judicial proceedings in the Administrative Court. Mr Grodzinski submits that neither the Governor in King’s case nor the SRBs in the cases of Borugass and Hussain were determining a dispute about whether the appellants’ Convention rights had been violated. Of course, the governor and the RSRBs were obliged pursuant to section 7 of the Human Rights Act to ensure that these decisions did not breach the appellants’ convention rights, but that did not transform the processes with which they were concerned into determinations of disputes about the appellants’ convention rights. I agree with and adopt this analysis. If it were not correct, then on every occasion on which any public authority takes a decision which might arguably engage Article 8 and therefore require justification, the process leading to the decision would engage Article 6. That would be absurd. [56]. (Emphasis added).

If for the appellants’ Article 8 rights in that passage are substituted the patient’s Article 6 civil rights it seems to me that that analysis supports the conclusion that in order to engage the patient’s civil right to unmonitored post a decision to transfer him or her to a high security hospital would have to be shown not only to be a decisive determination of that right but also one taken in the context of a dispute about the existence or scope of that right and/or about whether it has been or will be violated by a transfer.

That the analysis with which Maurice Kay LJ agreed in King applies to Article 6 civil rights no less than to the Article 8 rights in that case is supported by the fact that in RB (Algeria) asserted Article 6 rights were among those which Lord Hoffmann held did not engage Article 6 protection because the nature of the proceedings was not about the existence or violation of those rights even though they might have an incidental effect on them.

It is also supported in my view by the decision of the Commission in Brady and the reasons for that decision. Notwithstanding that the complaint was not only about the fact of the applicant’s classification Category A prisoner but also about the difference in treatment of those so classified, the Commission held that Article 6(1) was not engaged because of the nature of the decision to classify a prisoner as Category A. The nature of the decision was not “a determination of such matters (i.e. his civil rights and obligations…), not being a question of civil rights or obligations…, but an administrative classification. In other words the decision was not resolving by way of determination a dispute or contestation about the applicant’s right not to lose civil rights to unsupervised visits and unvetted correspondence. It was rather an administrative classification, the nature of which I infer the Commission considered to be the exercise of a judgment as to whether the risk of harm to members of the public in the event of the applicant escaping was so great as to justify detaining him in conditions designed to make escape impossible.

The distinction drawn by Maurice Kay LJ between the absence of a dispute or contestation about an established civil right at the point of an administrative decision and the obvious existence of such a dispute when an application for judicial review is commenced reflects the critical importance identified by him in that case, by Lord Hoffmann in RB (Algeria) and by Lord Hope in West played by the role of the nature of the proceedings in any given case in answering the question whether Article 6 is engaged.

A decision by a prison governor or an SRB that a prisoner should be segregated and placed in cellular confinement is not a decision determining a dispute between the prisoner and the prison authorities as to the existence or ambit of any civil rights enjoyed by the prisoner. It is an administrative decision as to whether segregation is justified for one or more of a number of reasons having regard to the interests not only of the prisoner but of others in the prison. The fact that it will inevitably restrict the Claimant’s ability to associate with other prisoners does not mean that the decision is a decision about the existence and/or scope of the prisoner’s civil rights. By contrast a challenge to such a decision by the prisoner on the ground that it violates his Article 6 and/or Article 8 civil rights would constitute a dispute or contestation about the Claimant’s alleged civil rights. Compare Lord Hoffmann in R B (Algeria): “ if the proceedings had been an action in tort for a breach or threatened breach of Article 3, then it would certainly be asserting a civil right and Article 6 would be engaged” (paragraph 178).

I accept Mr Chamberlain’s submission that the reasoning of the majority in King was not confined to the conclusion that there was no established civil right at issue and that it included a conclusion that there was no dispute or contestation at the stages of the decisions taken by the Governor or the SRBs and that that is one of the reasons why Article 6 was not engaged at those stages indeed that was the explicit conclusion of Maurice Kay LJ in paragraph 37 when he held: “there is plainly such a dispute when an application for judicial review is commenced but I do not consider that there is one earlier than that.”

Further I agree with Mr Chamberlain that if it is right that the nature of the proceedings before the hospital managers is (like the nature of the proceedings before the governor in King) such that no dispute/contestation arises at that stage, the issuing of judicial review proceedings does not somehow make Article 6 apply to those proceedings: rather Article 6 applies in the judicial review proceedings.

There was some debate as to whether the decision in this case could be distinguished from that in King on the basis that it lacked the discretionary element present in King this was I think prompted by Maurice Kay LJ’s observation that:

“… I consider this approach to the internal decision-making stage to be uncontradicted by later Strasbourg authority and consistent with the modern domestic jurisprudence on discretionary administrative decision-making such as A v London Borough of Croydon [2008] EWCA 1445, per Ward LJ at paragraphs 50-59 and Ali v Birmingham City Council [2010] 2 AC 39, per Lord Hope at paragraph 49. Although these cases were concerned with welfare or economic rights, as opposed to the imposition of sanctions, the conceptual matrix of administrative discretion is the same.” [43].

In my judgment the question whether the decision to transfer a patient to a high security hospital does or does not involve an element of discretion is not decisive of the question whether it determines any civil rights affected by such a decision. I see the force of Mr Squires’s submission that there is a distinction between a decision whether to segregate a prisoner and a decision whether to transfer a patient to high security. The latter essentially involves a judgment as to whether the patient satisfies the admissions criteria at the high security hospital and represents a risk to others which cannot safely be managed except in a high security hospital. The former involves a consideration and in certain cases a balancing of a number of different potential competing considerations and is not confined to an assessment as to whether the prisoner can only safely be managed in cellular confinement.

However this distinction does not in my judgment compel a different answer to the critical question whether the decision to transfer a patient constitutes a determination of his civil rights and a resolution of a dispute about those rights. Although Maurice Kay LJ commented that he considered that “this approach to the internal decision- making stage to be uncontradicted by later Strasbourg authorities and consistent with the modern domestic jurisprudence on discretionary administrative decision-making”, in my judgment his conclusion that there was as yet no dispute (or contestation) about an established right at the point of the administrative decisions was not dependent on that observation.

That analysis of the basis of Maurice Kay LJ’s conclusion that there was no determination of civil rights in King was the view taken of it by Elias LJ. In his dissenting judgment on this aspect he stated:

“The Secretary of State relies on the principle established in a series of cases, that there can be no determination of a civil right until there is a genuine dispute or “contestation”, to use the French phrase, and the proceedings must be directly decisive of the right in question: see e.g. the Enea case para 99. On the facts of these cases he submits that there was no dispute until the prisoners sought to avail themselves of the right to pursue the judicial review proceedings. Maurice Kay LJ accepts this submission…” (paragraph 89). (Emphasis added).

The fact that Maurice Kay LJ’s judgment on the determination issue was not dependent on his findings as to the discretionary nature of the decision involved in King is in my judgment further supported by the fact that he held that the decision in Brady supported his view. The discretionary elements of the decision making process as to cellular confinement are lacking in the decision as to whether to categorise a prisoner Category A. As I have already pointed out in my judgment there is considerable similarity between the nature of the decision in such a case and the decision as to whether a patient should be transferred. The reasons given by the Commission for its conclusion that categorisation decision are not determinations of disputes about civil rights was not that they involve the exercise of discretion but rather that they are not “a question of civil rights…”. By the same token the reason why Maurice Kay LJ held that the early Commission decisions on security categorisation (X and Brady) tend to support his analysis was not that they classified such categorisation decisions as involving the exercise of discretion but rather that they classified them as “administrative” rather than as determinations of disputes about civil rights. [41].

In my view the “approach to the internal decision-making stage” which Maurice Kay LJ considered to be consistent with the modern domestic jurisprudence on discretionary administrative decision-making such as A v London Borough of Croydon and Ali v Birmingham City Council was the approach to the prior question as to whether a right to association was a civil right at all. Thus Lord Hope’s conclusion in Ali was that “cases where the award of services or benefits in kind is not an individual right which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage Article 6(1)… They do not give rise to civil rights within the autonomous meaning that is given to that expression for the purposes of that article. The applicant’s right to accommodation under section 193 of the 1996 Act falls into that category”. (Paragraph 49). Ward LJ’s dicta in Croydon referred by Maurice Kay LJ were to similar effect (see paragraphs 50-59).

In his dissenting judgment on the question whether there was a determination at the stage of the decisions to segregate Elias LJ agreed with Pitchford LJ that although the purpose of the disciplinary proceedings was not specifically to determine the right of association of others prisoners it was directly and materially related to that issue and that under Convention law that suffices to attract the protection of Article 6 (assuming that a civil right is engaged). He stated that it was obvious that their liberties were at risk of being curtailed beyond that inherent in their prisoner status, and that they were objecting to this. (Paragraph 90). He added:

“the recent Boulois case casts light on these issue. In that case the court held that the dispute arose when the prison ward refused the various requests for prison leave and that the outcome of the proceedings before the board was decisive of the question whether he was entitled to leave. The court did not treat the dispute as arising only once the prisoner had indicated an intention to seek review of the board’s decision. Similarly here; the prison authorities were determining in a sufficiently direct and material way the exercise [of] the right of association with fellow prisoners”. [91].

There is in my respectful view further support for Elias LJ’s analysis to be found in Stegarescu. In that case the European Court found that there had been a violation of Article 6(1) because of the unavailability of a right of access to the courts for the purpose of challenging administrative decision to place the petitioners in a security cell which led to solitary confinement and thus restrictions of their civil rights. (Paragraphs 37, 38 49 and 52).

However Maurice Kay LJ referred to Stegarescu and Boulois as well as to Enea and had these points well in mind when he held that the decision in X and Brady which classified categorisation decisions as “administrative” rather than as determinations of disputes about civil rights tends to support his analysis. It follows from his statement that the court had not had its attention drawn to any subsequent questioning of those authorities that he did not consider that the decisions in Stegarescu and/or Boulois were inconsistent with or undermined the decision in X and Brady as he interpreted them.

In my judgment the conclusion of the majority of the Court of Appeal in King that the decisions in Enea, Stegarescu and Boulois are not inconsistent with their conclusion that there was no dispute or contestation about an established civil rights at the point of the administrative decisions or indeed at any point prior to the commencement of judicial review proceedings was a part of the latter conclusion and constituted part of the ratio decidendi of their decision. It follows that I am bound by it. In my judgement there is no basis for distinguishing that part of the reasoning of the majority in King in the present context. It follows that in my judgment there was no dispute or contestation about the Claimant’s civil rights at the time of the decision to transfer him to Broadmoor and that decision did not determine any civil rights so as to engage Article 6(1) at that time.

It follows that the remaining issues raised under the Article 6 claim do not arise.

For the reasons set out above in my judgment the answer to the first issue under Article 6 is no.

This issue only arises if I am wrong in my conclusion that the answer to the question posed under Issue 1 is no.

In Tsfayo v United Kingdom [2009] 48 EHRR 18 the ECHR held that:

“Where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6(1) in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).” (para 42).

Mr Southey QC in his skeleton argument accepted that this principle permits administrative decisions such as decisions to transfer a patient to conditions of high security to be taken by an administrative body. However he submitted that a court considering a claim for judicial review of such a decision would not have “full jurisdiction” in the sense contemplated by the ECHR in Tsfayo.

In that case the ECHR noted that the adjudicatory body (the Housing Benefit and Council Tax Benefit Review Board) (“HBRB”) was “deciding a simple question of fact” namely whether there was due cause for delay (paragraph 46). That was contrasted with the situation where the issue to be determined “required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims.” (ibid). In addition the HBRB “was directly connected to one of the parties to the dispute” (para 47). That was contrasted with the situation where a decision maker merely lacked independence from the Executive.

In the light of those matters the ECHR concluded that:-

“Whilst the High Court had the power to quash the decision if it considered, inter alia, that there was no evidence to support the HBRB’s factual findings, or that its findings were clearly untenable, or that the HBRB had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to re-hear the evidence or substitute its own views as to the applicant’s credibility. Thus, in this case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute (para 48)”.

In the light of those matters a violation of Article 6 was found.

Reference was also made to the case of R(Wright) v Secretary of State [2009] 1 AC 739 in which Baroness Hale stated:-

“If there is a “classic exercise of administrative discretion” even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case. (paragraph 23).”

In Wright Mr Southey said that a violation of Article 6 was found because there was no initial decision making process that enabled a person to challenge the allegations against them and the detrimental effect of the decision being considered was often irreversible and incurable (paras 25 and 28).

Mr Southey submitted that in this case there has been a plain failure to comply with Article 6 for the following reasons. First, there was a failure to disclose relevant material that was relied on as part of the decision making process at a time when representations could have been made. There was a failure to ensure equality of arms. In contrast to the position of the relevant decision makers from Broadmoor there was almost a complete failure to involve the Claimant in the decision making process. Further the decision was taken by a body that lacks independence. That was not merely a formal lack of independence. There was also no guarantee that the decision making body would have had no prior involvement with a patient’s case.

None of these matters could be remedied by a claim for judicial review applying the approach in Tsfayo. First judicial review could not remedy the lack of disclosure which denied the Claimant a meaningful opportunity to participate. Second as the primary issue was a simple issue of fact of a sort regularly considered by the criminal courts when sentencing, namely whether the recent behaviour of the Claimant justified a transfer to conditions of high security, judicial review could never ensure compliance with Article 6. Further even if judicial review could in principle ensure compliance with Article 6 there would be a need for adequate safeguards to ensure compliance – see Wright. Here there was an absence of such safeguards. In particular no arrangements were made for the Claimant to participate in the decision making process or to make representations. Thus the context is very different to that considered in King. There are none of the safeguards that are applied in the context of prison disciplinary proceedings.

The decision of Keith J in R (MA) v National Probation Service [2011] [EWHC 1332] (Admin) was distinguishable. In that case Keith J concluded that Article 6 was not violated by the decision making process governing the process for imposing licence conditions on a person released from prison. He reached that conclusion for three reasons. First the issue to be determined was a limited one. It was not whether conditions should be imposed on the Claimant to prevent him contacting his wife. Rather it was what conditions should be imposed, which was said to be very much a question for the probation service. (para 36). Second there was little that could be said by the Claimant in that case. (para 38). As a result there was no need for him to be allowed to make representations before the conditions could be imposed. Third he could make representations seeking a variation of conditions after they had been imposed (para 37). Permission to appeal was refused in that case by Sullivan LJ who concluded that the prisoner had ample opportunity to make representations as to the effect of the conditions after they had been imposed ([2011] EWCA Civ 1667 at para 9).

Mr Southey submitted that the issues in this case were very different. There was a need to consider whether the Claimant should be detained in conditions of high security that would potentially delay his release. That meant that the consequences of the decision to be taken were more serious than in MA. In addition there was a clear legal test to be applied in this case. Further there was in this case no opportunity for the Claimant to make representations at any stage.

As to an application to the Tribunal, the fact that any recommendation it made would be extra-statutory meant that it was not obliged to determine the issue of the Claimant’s suitability for conditions of high security. More importantly a judicial body that is advisory is not sufficient to ensure compliance with Article 6 (see for example Van de Hurk v Netherlands [1994] 18 EHRR 481 at para 45.)

Finally the fact that the Claimant was interviewed by Dr Sengupta and given an opportunity to comment on the proposed transfer was not equivalent to being heard in light of the matters above. In particular he was not able to make representations addressing the body of evidence that would be considered by the final decision maker.

On behalf of the Defendant Mr Hyam submitted that even if Article 6 is engaged the transfer decision did not breach Article 6. The decision was not decisive or irreversible because the Claimant had (and has) avenues open to him through which the propriety or otherwise of his remaining at Broadmoor in conditions of high security can be challenged: first by way of application to the hospital manager on the ground that the criteria for his remaining in Broadmoor are not met; second on an application to the First Tier Tribunal in respect of his continuing liability to be detained. On such an application the Tribunal can, and often does, make extra statutory recommendations as to the necessary level of security; and third by way of judicial review. In judging whether the procedure is fair or in compliance with Article 6 one looks at the full procedural protections available to the Claimant.

Reliance was placed on Tsfayo for the proposition that even where an adjudicatory body determining disputes over civil rights and obligations does not comply with Article 6 in some respect no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction”. It was submitted that Tsfayo also shows (i) that one looks at the system as a whole to decide if there is Article 6 compliance (para 42)(ii) Strasbourg’s approval of the approach in Runa Begum v TowerHamlets London Borough Council (First Secretary of State intervening) [2003] UK HL 5; [2003] 2AC430 and (iii) that it is the appropriate approach where “the issues to be determined require a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims”.

Thus even if Article 6 is engaged it was appropriate for the decision to be made without an oral hearing and without all the procedural requirements required by Article 6 because it was an administrative decision which required professional psychiatric expertise and did not involve a significant dispute of fact or an issue of credibility (see Tsfayo). Second an application to the Tribunal provides a means by which any potential for injustice may be cured because it has power in appropriate cases to make extra-statutory recommendations in favour of transfer to other hospitals, thus affording patients who consider they are inappropriately detained in conditions of high security the opportunity to make representations against such placements to an independent and impartial tribunal. Failure to abide by such a recommendation by a hospital without good reason would be capable of further challenge by way of judicial review. Third the decision on transfer was capable of being subject to review by a court of full jurisdiction and if necessary full merits judicial review if there was a real dispute as to fact which was crucial to the decision which could not be resolved without hearing oral evidence – see R(Wilkinson) v Broadmoor [2002] 1WLR 419.

In his reply Mr Squires submitted that this case fell on the Tsfayo side of the line in which judicial review would not cure a lack of independence rather than the King/Begum side of the line in which it would.

He submitted that unlike Begum the Admissions Panel was not engaged in a classic exercise of an administrative discretion or a discretion pursuant to wider policy aims (Tsfayo at paras 52 and 58 quoted in King at para 65.) It was only considering whether the Claimant met the specific criteria for admission. It would have been plainly unlawful if the panel had sought to pursue any wider policy aim in admitting the Claimant. Unlike in prison segregation cases the panel could not for example admit a patient to Broadmoor who did not meet its admission criteria because it considered that it would assist with good order and discipline in the medium security hospital or some other wider policy concerned.

The question whether the Claimant met the admission criteria was a factual question, even though Mr Squires accepted that it was a factual question requiring professional knowledge. Even if the facts in hospital admission decisions are complex it does not follow that judicial review can ensure sufficient independence when complex facts are determined by a decision maker but not where it is simple facts that are in issue. He submitted that a system such as that in operation in Scotland in which a patient is able to challenge his detention before an independent body able to determine for itself whether the transfer is necessary, and not simply a review of the legality of the decision, is required to satisfy Article 6.

As to the Tribunal, the decision of the ECHR in Van de Hurk applied to the Mental Health Review Tribunal as well. In that case a dairy farmer who wished to challenge the milk quota allocated to him by the Crown was entitled to appeal to an Industrial Appeals Tribunal. The Crown however had the power not to implement the Tribunal’s judgments. Even though it was accepted that this power had never been used the court nevertheless held that its existence prevented the Tribunal from satisfying Article 6.1. It concluded:-

“In the Court’s opinion, the power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party is inherent in the very notion of a “Tribunal” as is confirmed by the word “determination” (“qui decidera”). This power can also be seen as a component of the “independence” required by Article 6.1.” (para 45).

Thus in this case the fact that the Mental Health Review Tribunal’s recommendations are not binding in relation to transfer precluded it from being a “tribunal” within the meaning of Article 6.1 and also from being “independent”. Those defects it was submitted are not cured by the fact that the Defendant would be subject to judicial review if it failed to follow a Tribunal decision recommending a transfer back to medium security. In that event the Claimant would need to show that the failure by the Defendant to follow the Tribunal’s recommendation was irrational or otherwise unlawful. By definition there might be cases in which a patient might not be able to discharge that burden, whereas if the decision of the Tribunal was binding the Defendant would be bound to follow it. He further submitted that if a body can choose not to implement a decision of a tribunal that tribunal is not independent of it.

As to Wilkinson that was a case in which a patient challenged the administering of medical treatment to him without his consent. The Court of Appeal concluded that it must reach its own view on whether the patient was capable of consenting or refusing consent and whether the treatment would threaten the patient’s life or be degrading. (Para 26). As the court noted the judicial review was an unusual one as the claimant could have brought the claim by way of tort proceedings for assault in which his capacity to consent to treatment would need to be determined by the court. In those circumstances the court took the view that, notwithstanding that the claim was brought by way of judicial review, it would hear evidence and reach its own conclusion on the merits. (para 24). That included cross-examination of three expert witnesses.

Mr Squires submitted that the instant case is different. It was very difficult to conceive of a situation in which a court considering a judicial review of a decision to admit a patient to Broadmoor would consider it appropriate not merely to review the legality of the decision but also to reach its own view on whether the patient met the criteria for admission. One would have thought that the opposite approach would be taken with the court according deference to the expert decision-makers who decided to admit the patient and that that was likely to be so even if the patient’s human rights are engaged. A full review of the merits of this kind of decision is made by expert panels such as the Mental Health Review Tribunal but not, other than in unusual circumstances, by the Administrative Court in judicial review proceedings.

In relation to applications to the First Tier Tribunal the Secretary of State took a different position from that of the Defendant. He accepted that the Claimant was right to submit that the possibility of such an application cannot on its own satisfy the procedural requirements of Article 6 because its role in relation to transfers between hospitals is limited to making a recommendation rather than a binding determination. There was a more directly relevant authority than Van de Hurk. It was the decision of X v UK [1982] 4 EHRR 188 in which a patient challenged under Article 5(4) of the Convention the system then in force under which the power to discharge restricted patients was vested in the Home Secretary. The Home Secretary pointed to the power of the English Mental Health Review Tribunal (the predecessor) of the First Tier Tribunal in this context to issue recommendations for discharge. The ECHR held that the Tribunal did not satisfy the procedural requirements of Article 5(4) because its functions in that regard were “advisory only”: see paragraph 61.

However the position it was submitted is different in relation to judicial review proceedings which are binding. In deciding whether judicial review is sufficient to comply with Article 6 “it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal: Bryan v United Kingdom [1995] 21 EHRR 21; Runa Begum v TowerHamlets London Borough Council [2003] 2 AC 430 per Lord Hoffmann at paragraph 51 and King at paragraph 58. There is a dividing line between cases in which “the issues to be determined require a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims” (where judicial review will be sufficient) and those which turn on “a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim” (where it will not): Tsfayo at paragraph 46.

Mr Chamberlain relied on the statement by Maurice Kay LJ in King that “the authorities make it clear that the existence of a factual dispute does not render judicially reviewable internal decision making inappropriate” (see para 63). The Court of Appeal held that the decision whether to impose cellular confinement was “par excellence an area calling for professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims” (see para 65.) Exactly the same it was submitted is true of the decision whether to transfer a patient to a high security hospital from a medium security one. First he submitted that the focus on the decision of the Broadmoor Admissions Panel is apt to mislead. The decision whether to transfer in this case was taken pursuant to regulation 7 of the 2008 Regulations made under Section 19 of the 1983 Act by the managers of the original detaining hospital not Broadmoor. Second, decisions to transfer patients between hospitals self evidently involved complex multi-disciplinary assessments about the patient’s condition and risk.

Even if questions of fact arise the ultimate decision is one requiring the exercise of professional judgement. It also involves the weighing up of the patient’s interests against the interests of other patients, members of staff and (as it is harder to abscond from a high security hospital) public safety. That is a classic instance of administrative discretion pursuant to wider policy aims. Finally as in the case of cellular confinement the decision whether to transfer a patient pursuant to s.19 of the 1983 Act is taken within a clear regulatory structure (s.19 and regulation 7) and involves a large number of professionals.

In response Mr Squires submitted that the test as to whether the availability of Judicial Review is sufficient to secure the protection required by Article 6 if it is engaged is whether the decision on transfer concerns professional knowledge and expertise and constitutes an exercise of “administrative discretion pursuant to wider policy aims” – see Tsfayo at para 46 and King at para 65. In his submission it does neither. A comparison with the decision to confine prisoners to their cells in King shows that it would be obviously unlawful to take wider policy aims into account.

The power of prison governors to segregate prisoners is in order to maintain good order and discipline. It is, as noted by Maurice Kay LJ, in King not simply a binary decision affecting the individual prisoner or the governor but is taken in the interests of the security of the institution as a whole (paragraph 44). For example a decision may be taken to lock down the entire prison or a wing on receipt of apparently credible information about a planned breakout and such urgent matters are not susceptible to a judicialisation of the decision making process (ibid). The wider policy aims that are taken into account in deciding whether to segregate a prisoner were explained by Maurice Kay LJ as including the impact of any behaviour on the wider dynamics of the prison (para 65). On the case before the court the example was given of an improvement in the general atmosphere on a wing after a prisoner was segregated. As the Court noted segregation decisions therefore require expertise in prison management and knowledge of the dynamics of the prison in question which an external and independent body would not possess (ibid).

None of that it was submitted applies to the transfer of the patient to a high security hospital. The decision is a binary decision taken in relation to an individual patient. It requires a determination of whether the patient meets the criteria for admission and that is the only basis on which a patient can be transferred. The Broadmoor admission guidelines provide that one or more of specified behaviours in addition to a mental disorder must be present before admission to Broadmoor can be contemplated. It must then be decided that only high security conditions will provide the required level of security. Prisoners can be confined to their cells in order to promote good order and discipline across the prison even if they have not done anything wrong or are not considered to pose a risk to others for example to protect them from harm by others or where a whole wing is locked down. By contrast, patients cannot lawfully be transferred to a high security hospital en masse or individually to maintain order, to change the atmosphere on a wing or otherwise in the interests of the institution as a whole. The admission panel at Broadmoor has no discretion to pursue wider policy ends.

Mr Chamberlain’s response in his rejoinder was to submit that it is wrong to focus on the Broadmoor Admissions Panel. The decision whether to transfer is taken by the original detaining hospital pursuant to Regulation 7 of the 2008 Regulations. It has to make a decision which involves the weighing up of this patient’s interest against the interests of others. The decision may involve questions of fact for example about the circumstances of alleged violent incidents but “the authorities make it clear that the existence of the factual dispute does not render judicially reviewable internal decision-making inappropriate” – see King at paragraph 63. Even looking solely at the Broadmoor admissions panel, he submitted that the decision is a complex one which turns on the evaluation of clinical evidence. It is very obviously the type of decision which like that in King is unsuited to judicialisation.

Since I have concluded that Article 6 is not engaged I am reluctant to add to an already long judgment in answering questions which only arise if my conclusion is wrong. That is particularly so in the light of the fact that the Claimant’s common law duty of fairness claim is for him of academic interest only. I am also conscious that should it be held that my conclusion that Article 6 is not engaged is wrong, it might be that the answers to the remaining questions could be affected by the respects in which and reasons why my conclusion is wrong.

However, out of deference to the submissions of counsel, and with that caveat, I propose to address the second question albeit by reference to the circumstances of this case rather than in more general terms in which it was framed by Mr Chamberlain.

I am in no doubt that the Secretary of State was right to accept that the possibility of an application to the First Tier Tribunal cannot on its own satisfy the procedural requirements of Article 6 because its role in relation to transfers between hospitals is limited to giving recommendations rather than making a binding determination. I agree that this conclusion follows from the decisions in Van de Hurk and more particularly X v UK. As was said in Van de Hurk the power to give a binding decision is inherent in the very notion of a tribunal. I accept Mr Squires’ submission that the non-binding nature of a recommendation by the Tribunal that a patient should be transferred to a medium secure hospital is not cured by the fact that the Defendant would be subject to judicial review if it failed to follow it. By definition there might be cases in which a patient might not be able to discharge the burden of showing that it was irrational or otherwise unlawful of the Defendant not to follow the Tribunal’s recommendation, whereas if there were a right of appeal to a tribunal against the decision to transfer to Broadmoor the Defendant would be bound to obey an order upholding the appeal.

I would add that there is in my judgment a material difference between an appeal against a decision to transfer a patient to a high security hospital and a request to the managers and/or lead clinician in the high security hospital or an application to the Tribunal for a recommendation for a transfer back to a medium security hospital. As spelled out earlier in this judgment there are a variety of reasons why either of those routes may take a considerable time, even if successful, to result in an actual transfer to a medium security hospital. Not least is the need to secure the consent of the relevant funding authority and medium security hospital. In addition where, as in this case, the challenge to the decision to transfer the patient to the high security hospital turns on or at least raises a factual dispute which may require investigation with witnesses in the original medium security hospital, there may be obvious practical difficulties in achieving a satisfactory resolution of such issues in the context of a fresh application for the patient to be transferred back to a medium security hospital, which may of course be a different one to the hospital from which the patient was transferred. A fortiori if the statutory time limit on the number of applications which may be made to the Tribunal delay the ability of a transferred patient to seek an extra-statutory recommendation.

By contrast in my view the question whether the right to apply for judicial review is sufficient to satisfy the procedural requirements of Article 6 is less straightforward. That is partly because the decision making process in this context does not in my view fall neatly on either side of the dividing line suggested by the tests laid down by the House of Lords in R (Wright) and the ECHR in Tsfayo approving the approach of the House of Lords in Begum. In the former Baroness Hale referred to “a classic exercise of administrative discretion”. In the latter the ECHR contrasted Begum in which the issues to be determined “required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims” with the instant case in which the HBRB was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim. (paragraph 46).

The ECHR stated that in Begum the House of Lords stressed that although the housing officer had been called upon to resolve some disputed factual issues, those findings of fact were, to use the words of Lord Bingham in that case, “only staging posts on the way to the much broader judgments concerning local conditions and the availability of alternative accommodation, which the housing officer had the specialist knowledge and experience to make.” (paragraph 45).

On the one hand it is in my view clear that the issues to be determined in deciding whether a patient should be transferred from a medium to a high security hospital are likely to require a measure of professional knowledge or experience. This is reflected in the composition of the Admissions Panel at Broadmoor which is comprised of a lead clinician/consultant psychiatrist, a service director for information, a deputy director of nursing or nurse consultant, a directorate lead psychologist, the head of the social work department and the directorate lead occupational therapist. (The Appeals Panel is comprised of a non-executive director of the Defendant, the clinical director of Broadmoor SDU, an independent MSU consultant and a representative of the NHS London strategic health authority.)

According to Dr Murray all cases are assessed by a suitably qualified doctor form Broadmoor and on occasions by other members of staff such as a nurse or a psychologist. The decisions whether to admit a patient are described by Dr Murray as clinical decisions taken by an experienced group of clinical staff who have long experience in assessing referrals. The intention has been to ensure that there is a consistent threshold for admission decisions.

One of the criteria for admission is the existence of a mental disorder. It will be recalled that in this case the assessing doctor for Broadmoor Dr Sengupta expressed the opinion that there is little doubt that the Claimant suffers from sever borderline and anti-social personality disorder resulting in abnormally aggressive and seriously irresponsible behaviour and that there was evidence of symptoms of adult ADHD. Although the assessing doctor is not a member of the Admissions Panel and indeed does not attend its meetings, it is clear that part of his report, which forms the centrepiece of the material considered by the Admissions Panel, involves a professional and expert assessment of the patient’s current mental state.

On the other hand I see force in Mr Squires’ submission that the Admissions Panel is not engaged in “a classic exercise of an administrative discretion” or “a discretion pursuant to wider policy aims.”

In King one of the two points which in Maurice Kay LJ’s judgment compelled the conclusion that the internal procedures surrounding segregation decisions and their review, leading to the availability of judicial review, amount to determination by an independent and impartial tribunal was that segregation decisions in a prison is par excellence an area calling for professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. (paragraph 65)

He quoted a witness who said that the decision on whether particular types of behaviour warrant segregation is linked not just to individual [incidents] but to a holistic appreciation of the impact of the behaviour on the safety and control of the prison. Without the operational knowledge of the wider dynamics of the prison it would be extremely difficult for an independent person or body to achieve the balance between meeting operational need and allowing the prisoner to remain on normal location. Maurice Kay LJ agreed with that assessment.

He also accepted that expertise in prison management and knowledge of the dynamics of the prison in question will be found more readily within the institution. He gave as an example the fact that following the removal of one of the prisoners from his normal wing the general atmosphere on the wing had improved with all prisoners, particularly those with Muslim faith, being more at ease with each other and with staff. He accepted the submission that these are quintessentially evaluative judgments best made by those with on-going knowledge about the running of high security prisons rather than an external adjudicator within an adversarial process. (ibid).

Mr Squires submitted that, unlike in prison segregation cases, the Broadmoor Admissions Panel could not admit a patient who did not meet its admission criteria because it considered that it would assist with good order and discipline in the medium security hospital or some other wider policy concern. I see force in that submission.

The test for satisfying the admissions criteria set out in the Broadmoor Admission Guidelines is whether the patient has a recognisable mental disorder whether the patient is liable to detention under the 1983 Act and whether one or more of the specified behaviours is present. According to the Guidelines, if those criteria are satisfied the patient may only be admitted if no lesser degree of security than that available at Broadmoor will provide a reasonable safeguard to the public and if the high security available within Broadmoor is necessary because the patient could not be safely contained within the security available at a medium secure unit. Unless those conditions are met it is accepted by the Broadmoor Guidelines that to admit a patient to Broadmoor would be an unacceptable infringement of his or her right not to be detained in a higher level of security than he or she requires. It is not easy in these circumstances to imagine circumstances in which, if those conditions were not met, it would nonetheless be lawful for a patient to be transferred from a medium security hospital to Broadmoor as a matter of or in the interest of wider policy considerations.

It is clear that the overall assessment and evaluation of the degree of risk posed by a patient and whether it can be safely managed in a medium security hospital require a measure of professional knowledge or experience. On the other hand it does not seem to me that that assessment and evaluation constitutes an exercise of administrative discretion pursuant to wider policy aims.

Contrary to Mr Chamberlain’s submission it does not seem to me to involve the weighing up of the patient’s interests against those of other patients, members of staff and (as it is harder to abscond from a high security hospital) public safety. If it is judged that a patient poses so significant a risk that it cannot safely be managed in a medium security hospital there is no suggestion in the Broadmoor Admissions Policy that the Admissions Panel may decline to admit the patient on the ground that it would not be in his interests.

The matter is further complicated by the question of the role played by fact finding in the decision making process. Mr Squires’ submission was that the question whether the Claimant met the admission criteria was a factual one even though it required professional knowledge. The ultimate question he submitted was one of risk assessment which is conducted routinely in criminal courts by judges. So in this case the Admissions Panel must be satisfied that one or more of the specified behaviours are present before admission to Broadmoor can be contemplated. Those are all evidence based.

In my judgment the distinction is not quite so black and white as suggested by Mr Squires. Although much of the background identified in the assessing doctor’s report is based on specific incidents, conduct or events it may include such matters as the patient’s feelings. Moreover the factual background is relevant to an evaluation or assessment as to whether the conduct identified evidences the existence of a risk to the public which could not be safely managed within the security available at a medium secure unit. That in my judgment is likely if not bound to involve a professional evaluation both of the patient’s state of mind and of the suitability or otherwise of the facilities available at the medium security hospital from which he has been referred safely to manage the risk. In that sense it could be said that findings of fact as to particular incidents are only staging posts on the way to the broader evaluative judgment as to the level of risk, albeit that that judgment is not itself made as part of an administrative discretion pursuant to wider policy aims.

A complicating factor is that the existence of factual disputes and their importance to the ultimate risk assessment may vary significantly from case to case. Without the background of other evidence which strongly supported the conclusion reached by the Admissions Panel in this case it is possible to imagine a case in which the factual dispute relied on by the Claimant in this case might make a very material difference to the ultimate risk assessment. The risk of incorrect factual findings is arguably greater in the current context than in the context of risk assessment in the setting of sentencing in a criminal court, given on the one hand the possibility of vulnerable patients who may be inarticulate or by reason of their mental disorder unable persuasively or at all to give a factual account and on the other the possibility of other manipulative psychopathic patients who may exploit such vulnerability and/or hospital staff who may mis-interpret events or feel that they can make false allegations with relative impunity against a vulnerable patient.

In such a case the protection afforded to a patient by the rationality and lawfulness Wednesbury test available in normal judicial review proceedings might prove an inadequate tool for challenging disputed findings of fact.

It is impossible to overlook the fact that in Scotland in the same situation a patient has an absolute right to appeal to an independent tribunal against an actual or prospective decision to transfer him or her to the equivalent of a high security hospital. It is not without interest that, if when an appeal against transfer is made to the Tribunal, the proposed transfer has not taken place, the default position is that the patient shall not be transferred. That may only happen if the Tribunal is satisfied that pending determination of the appeal the patient should be transferred and it makes an order to that effect.

Moreover the burden of proof is not on the patient to satisfy the Tribunal that he does not require to be detained under conditions of special security which can only be provided in a state hospital. Rather the burden is on the hospital to satisfy the tribunal that the patient does require to be detained under conditions of special security which can only be provided in a state hospital if it wishes to be certain of upholding its decision to transfer. If it fails to do so the Tribunal has an unfettered discretion to order that the proposed transfer not take place or as the case may be that the patient be returned to the hospital from which he was transferred.

It is thus considered right in Scotland that a patient should have an absolute right of appeal, that the burden of proof is not on the patient to prove that the initial decision was wrong but on the respondent hospital to prove at least that it was justifiable. Moreover it is for the Tribunal itself to form the judgment as to whether the patient requires to be detained under conditions of special security which can be provided only in a state hospital. In so far as that judgment may involve both making findings of fact and forming risk assessments the legislature has deemed it appropriate to leave the final word with the external tribunal.

Thus the legislature did not consider that the need to act urgently to protect members of the public is incompatible in every case with a procedure in which a decision to transfer the patient can be reviewed by an independent external tribunal even before the transfer takes effect. Further it is to be inferred that it considered that the nature of a decision to transfer a patient to a state hospital to be detained under conditions of special security and the nature of the issues likely to arise in the making of such a decision are (1) such that it is desirable that the patient should have a right of appeal to an independent tribunal and (2) not such as can only be taken by people with immediate knowledge of the conditions in the referring medium security hospital.

It does not follow that the Scottish Parliament considered that a decision to transfer a patient to state hospital does engage autonomous civil rights of the patient. Nor does it follow that the legislature considered that without such a right of appeal the existing procedures for making the initial decision coupled with the right to apply for judicial review would not comply with Article 6 if and in so far as it might be engaged by a decision to transfer a patient to a state hospital. Nor was the legislature in question the United Kingdom Parliament, which has not passed a similar statute for England and Wales.

Nonetheless the 2003 Act does in my view lend some support to the proposition that a right to apply for judicial review, at least to a court which does not have the power to overturn findings of fact on grounds other than irrationality or unlawfulness, may not be sufficient to render compliant with Article 6 a decision making process for the transfer of a patient to a high security hospital from which there is no right of appeal to an independent tribunal. It also suggests, subject of course to any material differences between the relevant circumstances in Scotland on the one hand and England and Wales on the other, that there are no insuperable logistical problems inherent in the nature of the decision which has to be made which make access to an independent tribunal by way of appeal impossible.

The matter is yet further complicated by the fact that in both R (Wright) (paragraph 23) and King [66], the conclusion that judicial review may in some circumstances be adequate to supply the necessary access to a court depended on there being in addition a number of safeguards to ensure that the procedure by which the original decision is taken and/or reviewed is in fact both fair and impartial.

Thus in King Maurice Kay LJ held that the fact that once the matter comes within the purview of the SRB a wide and diverse range of personnel becomes involved, including psychologists, health care officials, chaplains and prisoner officers of various levels and functional responsibilities, gives rise to confidence in the process. He specially mentioned the presence on the SRBs of IMB members who he said were able to bring a further element of independence and who had access not only to the governor of the prison but also upwards into the civil service and ultimately to the Secretary of State.

In R (Wright) Baroness Hale referred to the well known principle that decisions which determine civil rights and obligations may be made by administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises “full jurisdiction” – see Bryan v United Kingdom (1995) 21 EHRR 342 applied domestically in R (Alconbury Developments LTD) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 and Runa Begum. She observed that:

“What amounts to “full jurisdiction” varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject matter of the decision and the quality of the decision making process.” (Paragraph 23).

There then followed her statement quoted above with its emphasis on a “classic exercise of administrative discretion” and the existence of a number of safeguards to ensure that the procedure is in fact both fair and impartial.

In R (Wright) itself the Claimant care workers were provisionally included in a list of people considered unsuitable to work with vulnerable adults pursuant to a section in the Care Standards Act 2000 which made no provision for first according them a hearing. The House of Lords held that the denial of an opportunity for care workers to answer allegations before being listed made the statutory provision procedurally unfair. Moreover it was an unfairness which could not be cured by judicial review. (Paragraphs 25 and 28).

In King one of the claimants raised a stark factual issue of whether he was involved in any way in an alleged assault on another prisoner. Maurice Kay LJ commented that the authorities make it clear that the existence of a factual dispute does not render judicially reviewable internal decision-making inappropriate. However two of the claimants also submitted that the procedure was defective because there was no right for the prisoner to make representations before the initial decision to segregate. They relied in that context on R (Wright). As to that Maurice Kay LJ made two points. The first was that R (Wright) involved the risk of imposing possibly irreparable damage to employment or prospects of employment. The second was that the decisions in relation to the two complaining claimants in King were taken in circumstances requiring urgency and that although they had no right to make representations before the initial decisions they could last no more that 72 hours and were subject to early and regular periodic review thereafter at which point the prisoner could make representations to the SRB. [63].

The contrast between R (Wright) and King demonstrates the importance attached by the courts in those two cases to the availability or unavailability of a right to make representations and access to review of the initial decision by a body including some element of independent membership to the question whether the procedures for the initial decision were sufficiently fair that, taken together with the right to apply for judicial review (without a fact reviewing jurisdiction), they complied with Article 6 (see also the emphasis placed by Sullivan LJ in ex parte Ahmed on the existence of alternative safeguards as one of the reasons for rejecting an argument that the failure to provide an opportunity to make representations prior to the imposition of parole conditions was a breach of Article 6). They also demonstrate the importance to that question of the seriousness of the adverse consequences to the Claimant flowing from the decision under challenge.

The first of these points would tend to support the inadequacy of judicial review without a fact reviewing role in the present context since the Claimant in this case was afforded no such right either orally or in writing. As to the second its application to the present context might depend on which civil right were to be held to be determined by a decision to transfer a patient to a high security hospital. In this case I have held that there was no determination of any civil right. If it were held that the decision determined the Claimant’s civil right to liberty because of its effect in delaying the ultimate date of discharge, the seriousness of that consequence would in my view strongly support the proposition that nothing short of a right of access to a court with a fact reviewing jurisdiction would comply with Article 6. If the only civil right held to be determined by the decision to transfer was his right to unmonitored post that support might be less strong. As the ECHR held in Bryan:

“in assessing the sufficiency of the review… it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual ground for appeal.” (360 paragraph 35). (Emphasis added).

As matters stand the position in the present context is in my judgment different to that identified and emphasised by Maurice Kay LJ in King as important. There is no independent or outside member of the Admissions Panel and although there are independent members of the Admission Appeals Panel, the patient has no right of appeal to that panel in the event of a decision by the Admissions Panel that he should be admitted.

Further the Claimant in this case was not afforded an opportunity to make written representations to the Admissions Panel before it met, before Broadmoor reached its final decision to admit him, before the decision to transfer him was implemented or even after it was implemented. Nor was he sent any of the material which was before the Panel before it met. In particular he was not sent either the referral request from Dr Vandenabeele or the assessment report of Dr Sengupta or the gist of either of them until some time after the Admissions Panel decided to support his admission to Broadmoor. His solicitor’s request made on 19 August 2010 to attend the Panel was refused and as appears from the Operational Policy there is a blanket refusal for patients or their representatives to attend for the purpose of making representations or giving evidence. Nor is there any evidence of a willingness to consider on its merits the request made on 24 September 2010 for an oral hearing particularly in the event that the issues were complex and/or there was conflicting evidence.

It is of course true that once a patient has been transferred to Broadmoor he may request the hospital managers or his lead clinician to recommend a transfer back to a medium security hospital and if that fails he may apply to the Tribunal with a view to seeking a recommendation to that effect. However for the reasons I have given in my judgment that would not remedy inadequate protection as contemplated by Article 6.

Against that background if one asks the question whether the procedure by which the decision to transfer the Claimant was taken coupled with the availability of judicial review (confined to applying Wednesbury principles) provided an adequate safeguard in this case against a decision being based on mistaken findings of fact in my judgment the answer is no: whether the answer would necessarily be the same in every case I do not think it appropriate for me to comment on. The answer might be different if (a) the procedural requirements of the common law duty of fairness were complied with and (b) the patient were given a right to appeal to an appeals body such as the Broadmoor Admissions Appeal Panel, which includes independent members. I do not consider that this is the occasion to express a more general opinion.

Given that I have held that no autonomous civil rights were determined in this case so that Article 6 is not engaged, it would not I think be helpful or appropriate to express any more general view, not least because I saw no evidence as to the decision making process involved in relation to transfers between other medium hospitals and other high security hospitals.

I would confine myself to drawing attention to the following additional matters.

In Begum Lord Hoffmann observed that:

“In any case, the gap between judicial review and a full right of appeal is seldom in practice very wide. Even with a full right of appeal it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and, more especially relevant to this case, on questions of credibility.” Paragraph 47).

However in Tsfayo the ECHR, albeit in the context of a decision-making process which it considered to be significantly different to that in Begum and Bryan, held that the right to claim judicial review in that case did not make the decision making process compliant with Article 6(1) because “there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute” (paragraph 48).

It is important to note the nature of the factual dispute in that case, its importance to the ultimate issue to be resolved and the ECHR’s view of what was required to determine the issues:

“In Bryan, Runa Begum and the other cases cited at [43] above, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the HBRB was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim. On this question, the applicant had given evidence to the HBRB that the first that she knew that anything was amiss with her claim for housing benefit was the receipt of a notice from her landlord – the Housing Association seeking to repossess her flat because her rent was in arrears. The HBRB found her explanation to be unconvincing and rejected her claim for back-payment of benefit essentially on the basis on their assessment of her credibility. No specialist expertise was required to determine this issue, which is, under the new system, determined by a non-specialist tribunal. Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take.” (paragraph 46).

If it is right that the absence of sufficient safeguards at the decision making stage in this case was such that access to judicial review confined to the application of Wednesbury principles would not be enough to comply with Article 6, was Mr Hyam right that the decision on transfer was capable of being if necessary subject to a full merits judicial review if there was a real dispute as to fact which was crucial to the decision which could not be resolved without hearing oral evidence as in Wilkinson? Or was Mr Squires right that it is very difficult to conceive of a situation in which a court considering a judicial review of a decision to admit a patient to Broadmoor would consider it appropriate not merely to review the legality of the decision but also to reach its own view on whether the patient met the criteria for admission? Was he right to submit that the opposite approach would be taken with the court according deference to the expert decision makers who decided to admit the patient and that a full review of the merits of this kind of decision is made by expert panels such as the Mental Health Review Tribunal but not other than in unusual circumstances by the Administrative Court in judicial review proceedings?

In Wilkinson the appellant was an elderly mental patient who had been detained at Broadmoor for almost 34 years. His responsible medical officer (RMO) was of the view that he needed treatment by way of anti-psychotic medication. The appellant vigorously opposed it. Under section 58(3)(b) of the 1983 Act his consent was not required if another doctor appointed by the Secretary of State certified in writing that he was not capable of understanding the nature, purpose and likely effects of the treatment or had not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given. A certificate was obtained from a doctor certifying that the appellant was incapacitated but that having regard to the matters referred to in section 57(3)(b) the treatment should be given.

Armed with this certificate the appellant’s RMO treated him by forcibly injecting him with anti-psychotic drugs. The appellant fought against it and had to be physically restrained on his bed.

The appellant’s solicitors obtained a report from an independent consultant psychiatrist expressing very different views from those of the RMO and the certifying doctor on all the important medical issues in the case notably (i) as to the nature of the appellant’s mental disorder, (ii) as to whether or not he was incapacitated, (iii) as to whether the proposed treatment would benefit his condition and be justified even with his consent and (iv) whether such treatment was justified if it had to be given under restraint.

The appellant was given permission to apply for judicial review of the treatment decisions already taken by the RMO and the certifying doctor and for an injunction prohibiting any further such treatment. Jowitt J refused his application for an order that all three doctors attend that substantive judicial review hearing for cross examination on their witness statements.

The Court of Appeal allowed the appellant’s appeal. In doing so it rejected the respondents’ argument that this was a judicial review challenge in which the critical question as ever was whether those whose decisions were impugned had acted fairly reasonably and lawfully and where no issue of precedent fact arose for the court’s determination. Notwithstanding that fundamental human rights were acknowledged to be involved in the case the respondents had argued that it did not follow that the court must therefore adopt a primary fact finding role. Rather a super-Wednesbury approach was appropriate whereby the court would engage in a particularly intensive review but not substitute itself for the statutory decision maker – see R v Ministry of Defence ex parte Smith per Sir Thomas Bingham MR [1996] QB 517, 544.

The respondents had also relied on the following passage in the judgment of Sedley LJ’s judgment in R v Camden and Islington Health Authority ex parte K [2001] 3 WLR 53, para 55:

“As it seems to me, the level available of redress, by judicial review rather than by appeal, is an appropriate one. No judge can realistically sit as a Court of Appeal from a psychiatrist on a question of professional judgment. What a judge must be able to do is to ensure that such judgment, to the extent that it exercises a public law function is made honestly, rationally and with due regard only to what is relevant. Within this boundary more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposed of Article 5(4), at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist.”

Simon Brown LJ rejected the suggested analogy with K as a false one. It was one thing to say, as was decided by K, that the court could not compel a psychiatrist against his clinical judgment to undertake the patient’s treatment in the community (as the MHRT’s conditions of discharge there required); quite another to conclude that the courts can never decided disputed questions of professional opinion. He cited as examples of where the court is often required to do exactly that the assessment of damages in personal injury cases, deciding medical negligence actions, albeit in that context adopting the approach formulated initially in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and approved by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232. More relevantly still the court has no alternative but to reach its own factual conclusions when determining best interest applications in which case it may well have to decide between conflicting medical opinions. The test under section 58(3)(b) whether the treatment should be given having regard to the likelihood of its alleviating or preventing a deterioration of the patient’s condition essentially mirrored the best interest test. (paragraph 22).

However Simon Brown LJ emphasised that it would be inappropriate on such an appeal for the court to attempt to resolve at that stage all the questions which, depending on the detailed factual conclusions arrived at by the judge on the substantive hearing, might then arise for decision under the Convention. That appeal was no occasion to attempt broad and sweeping statements of principle across the entire field of 1983 Act detentions. (paragraph 23).

He confined his reasons for allowing the appeal to the fact that the same issues which arose in the judicial review claim could have been raised in an action in tort for assault. The relief in such an action would include an injunction to prohibit further treatment or a declaration to equivalent effect. In such proceedings it was impossible to contend that the medical witnesses should not be called to give evidence or should be excused from attendance for cross-examination. (paragraph 24).

He also stated that the appellant could have brought proceedings under section 7 of the 1998 Human Rights Act claiming that the hospital trust proposed to act in a way incompatible with his rights under Articles 2, 3, 8 and 14 of the European Convention on Human Rights. Since the breaches alleged were either fundamental (those asserted under Articles 2 and 3) or such as obviously raised questions of necessity and proportionality (those asserted under Articles 8 and 14) Simon Brown LJ said that the court’s need so far as possible to investigate and resolve the medical issues became even plainer.

He cited the following passage from Lord Steyn’s speech in R v Homes Secretary ex parteDaly [2001] 2 WLR 1622:

“The doctrine of proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and consideration. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence ex parte Smith [1996] QB 517, 544 is not necessarily appropriate to the protection of human rights.” (paragraph 25).

Simon Brown LJ concluded that the court must inevitably reach its own view both as to whether the appellant was incapable of consenting (or refusing consent) to the treatment programme planned for him by the RMO and, depending upon the court’s conclusion on that issue, as to whether the proposed forcible administration of such treatment would threaten his life and so be impermissible under Article 2, would be degrading and so impermissible under Article 3 and would not be justifiable as both necessary and proportionate under Article 8.2. He stated that the super-Wednesbury test adopted from Smith, (itself an Article 8 case), was held to be inadequate by the ECHR in Smith and Grady v Untied Kingdom (1999) 29 EHRR 493. He could see no basis on which an approach disapproved in the context of homosexuality in the armed forces could be supported in the context of forcibly treating mental patients. Quite the contrary given that that case also raised a real question under Article 3. (paragraph 27).

Even if the appellant were incompetent the court would need to be satisfied that the medical necessity had been convincingly shown to exist according to the psychiatric principles generally accepted at the time. (paragraph 30). In the result Simon Brown LJ held that if there were to be a fresh decision to subject the appellant to forcible treatment which was then challenged he would order the attendance of all three specialists for cross examination at the review hearing. He recognised that that would substantially complicate and lengthen the course of proceedings. He also recognised the great inconvenience it would occasion the respondents and the potential inhibiting effect it could have in future on the choice of treatment for uncooperative mental patients. However he expressed the confident hope that challenges of that nature would be rare indeed and would arise only in the most exceptional circumstances. He also observed that courts would not be astute to overrule a treatment plan decided upon by the RMO and certified by a second doctor following consultation with two other persons. (paragraph 53).

It is of interest that Simon Brown LJ added that if he had concluded that the Administrative Court’s role on the challenge was as narrowly confined as contended for by the respondents the Article 6 challenge would have proved irresistible. In particular he could not think that the court’s review jurisdiction, assuming it was to be exercised narrowly in the super-Wednesbury sense, would meet the requirements of Article 6. (paragraph 35). He thus concluded that on a substantive challenge what would be required was a full merits review of the propriety of the treatment proposed and for that purpose cross-examination of the specialists. (paragraph 36).

Both Simon Brown LJ and Hale LJ, who agreed with him, cited an extract from the judgment of the European Court of Human Rights in Herczegfalvy v Austria (1992) 15 EHRR 437 at para 82:

“The Court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospital calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide on the basis of the recognised 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 therefore responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit of no derogation.

The established principles of medicine are admittedly in principle decisive in such cases; as a general rule a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.” (paragraphs 19 and 77).

Hale LJ also rejected the view that the decisions of the doctors that the statutory conditions applied were subject only to the usual principles of public law, albeit on the super-Wednesbury principles set out in ex parte Smith. She said it would be tempting to regard the issues in play in the same light as those decided by the Family Division of the High Court in the exercise of its declaratory jurisdiction in relation to people who lack the capacity to decide for themselves. What logic or injustice, she asked rhetorically, is there in subjecting disputed questions relating to incapacitated people to full scrutiny and decision by the court while denying it to detained patients? Is not the existence of the statutory grounds for the imposition of these treatments a question of fact upon which the existence of the statutory authority to treat depends? (paragraph 72 and 74).

Referring to the ECHR in Herczegfalvy Hale LJ stated:

“The Court understood how vulnerable such patients can be and how much in need of the protection of the world outside the closed world of the psychiatric institution however well meaning. The Court was properly respectful of “therapeutic necessity” and “the psychiatric principles generally accepted at the time”. But it was not confronted with what we have here: a dispute about whether or not the patient lacks the capacity to decide these matters for himself and a dispute whether in any event the imposition of this particular treatment against his will is a therapeutic necessity.” (paragraph 79).

Hale LJ concludes:

“Whatever the position before the Human Rights Act the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8. Super-Wednesbury is not enough. The appellant is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out: i.e. whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent, “having regard to the likelihood of its alleviating or preventing a deterioration of his condition.” If they are, in other words if Dr Horne rather than Dr Grounds is right, then I would hold that this treatment could be given to him.” (paragraph 83).

She added

“This is not the same as saying that every patient is entitled to such a hearing in advance. Once again the analogy with arrest holds good. The RMO and [certifying doctor] are not determining his civil rights and liabilities. They are merely deciding to impose or authorise treatment in the belief that the statutory grounds for doing so exist. They do not have to go to court for advance authorisation (although as in the incapacity cases there is nothing to stop them doing so if the case is a particularly difficult or controversial one). But once a situation exists in which the treatment can be scrutinised, whether before or after the event, then that scrutiny should take place.” (paragraph 84).

In Wilkinson the issues on which the Court of Appeal held that there would have to be cross examination at a full judicial review hearing in the Administrative Court were whether the Claimant was capable of consenting or refusing consent to the treatment programme planned for him by the RMO and whether it should be given to him without his consent having regard to the likelihood of its alleviating or preventing a deterioration of his condition. The court would have to reach its own view on those matters and also on whether the proposed forcible administration of the treatment would threaten the appellant’s life, be degrading and not be justifiable as both necessary and proportionate given the extent to which it would invade his right to privacy and thus contravene Articles 2, 3 and 8 of the Convention respectively. It is not entirely clear whether the Court of Appeal had a common view as to whether these were properly regarded as purely factual issues or issues whose resolution depended on resolving disputes of issues of fact. Hale LJ stated:

“If there are relevant disputed issues of fact these will have to be determined by cross examination if necessary. (Paragraph 62).

…is not the existence of the statutory grounds for the imposition of the treatments the question of fact upon which the existence of the statutory authority to treat depends?” (Paragraph 72).

Simon Brown LJ rejected the submission that the courts can never decide disputed questions of professional opinion. (paragraph 22). Some at least of the issues as to which he held that the court would have to reach its own view, to which I have referred above, were arguably questions of opinion rather than fact.

Be that as it may the broad nature of the conflicting medical evidence which was ordered to be tested by cross examination of the three doctors was as to their professional opinions as to the capacity of the appellant to consent and as to the likely medical consequence flowing respectively from the treatment being given or not given to the appellant.

The reason why it was held that exceptionally the court would have to look beyond the rationality of the decisions made and form its own opinion on these matters was that the issues raised could as well have been raised either in an action in tort for assault or in an action for damages for breach or apprehended breach of the appellant’s Article 2, 3 and 8 Convention rights.

The principal substantive challenge to the decision to transfer the Claimant to Broadmoor and to admit him there sought to be raised by Ms Jolly on his behalf was based on an assertion that he did not pose a risk to others which could not safely be managed in a medium security hospital. There is here in my view a tension between Mr Southey’s submission that the primary issue of whether the Claimant’s recent behaviour justified a transfer to conditions of high security was a simple issue of fact of a sort regularly considered by the criminal courts when sentencing and Mr Squires’ submission that it is very difficult to conceive a situation in which a court, when considering a judicial review of a decision to admit a patient to Broadmoor would consider it appropriate to reach its own view as to whether the patient met the criteria for admission and that the court would take the opposite approach of according deference to the expert decision makers.

The essential challenge to the decision was based on the assertion that the Admissions Panel was materially and possibly decisively influenced in its assessment of risk by a flawed factual account of the incident at Stockton Hall presented first by Dr Vandenabeele and then by Dr Sengupta. These errors led the Admissions Panel wrongly to conclude that the Claimant intended to use the concealed weapons to assault the other patient. If the facts had been properly presented they should have led to the different conclusion that the Claimant’s manufacture and hiding of the weapons was designed only to put pressure on the hospital staff to separate him from the other patients and that there was no intention to use them to assault him.

On analysis most of the Claimant’s challenges are not to the finding of fact made by the Admissions Panel that he intended to use the weapons to assault the other patient. Rather they are to the fact that in making the finding of fact the Admissions Panel wrongly took into account a version of the incident which can be shown not accurately to represent the contemporaneous notes. To that extent they would give rise to a classic Wednesbury challenge which if successful would lead not to the Court substituting its own finding of fact as to the Claimant’s intention but rather setting aside the Admissions Panel’s finding of fact and requiring it to reconsider the matter based on accurate evidence. Since such a reconsideration would, as I have held, fail to comply with the procedural requirements of the common law duty of fairness if it were to replicate the original decision making process, that would, in my judgment, be insufficient to comply with Article 6 on the hypothesis that I am wrong and that the Claimant’s Article 6 civil rights were engaged by the original decision. Even in such a reconsideration the Claimant would be deprived of his rights to make representations, to properly informed and so on and there would be no review of a second decision by any body including an independent element.

However there is one factual assertion made by Dr Vandenabeele in his witness statement (which was not before the Admissions Panel) and which does not in terms appear in the contemporary notes, namely that the Claimant self reported to him that he had incited other patients to become involved in his plans violently to assault the other patient. The notes refer to several other patients being ”involved” in the plan to attack the other patient. More fundamentally Ms Jolly takes issue with the interpretation made by Dr Vandenabeele and accepted by the Admissions Panel of the incident including the Claimant’s own admission that he intended to assault the other patient. In her submission the proper interpretation of the incident was that the Claimant was pretending that he intended to assault the other patient in order to manipulate the hospital staff and get his own way in being separated form the other patient.

Thus what the Administrative Court would be invited to do would be to accept that interpretation of the evidence and conclude that the Panel was wrong to find that he intended to assault the other patient.

On its own such a finding of fact would not be sufficient to set aside the decision to transfer the Claimant to Broadmoor. The court would also have to substitute for the Panel’s risk assessment its own assessment that the risk presented by the Claimant was not so great that it could not safely be managed in a medium security hospital. The key question is whether the Administrative Court would embark on such an enquiry. Such an enquiry might but not necessarily would involve hearing evidence from the relevant hospital staff at Stockton Hall and possibly the Claimant himself and other patients at Stockton Hall who witnessed parts of the incident.

It is in my view immediately apparent that this is the kind of investigation which is rarely carried out in the Administrative Court. It has elements of fact finding and elements of drawing inferences and forming judgments as to a detained patient’s likely future behaviour. While the Court is experienced in assessing evidence and credibility it is not experienced in identifying testimony which is the product of mental disorder or illness. It is experienced in assessing conflicting expert evidence, as pointed out by Simon Brown LJ in Wilkinson. Nonetheless the particular blend of factual and psychological evaluation which might arise on such an enquiry would not make the Administrative Court the most natural or obvious forum for its ultimate resolution. It is no doubt partly for that reason that in Scotland provision is made for appeals to an independent specialist tribunal against decisions for actual or prospective transfers of patients to state hospital.

However if the Claimant could have raised “the self-same issues” (per Simon Brown LJ) in an ordinary action in tort or under section 7(1) of the Human Rights Act 1998 alleging an actual or proposed breach of his Convention rights, then in my view the effect of the decision in Wilkinson is that it would be impossible to contend that on a judicial review claim witnesses should not be called to give relevant evidence as to those issues or that they should be excused from attendance for cross examination. Plainly such proceedings would have to pass the threshold of disclosing a reasonable cause of action and a good arguable claim on the merits so as to be immune from a successful application to strike out or for summary judgment.

In the current context it is not obvious what if any cause of action in tort would be available to the Claimant if it were held that the decision to transfer the Claimant engaged his autonomous civil right to liberty by reason of the likely delay in his ultimate date of discharge under the 1983 Act. It was not suggested in argument that that would give rise to a cause of action for false imprisonment or any other tort.

On its face however it would be possible to envisage an action claiming injunctive and/or declaratory relief and/or damages for actual or threatened breaches of the Claimant’s Article 8 rights by reason of his automatic exposure to the mandatory statutory requirements for the monitoring of post consequent upon a transfer and admission to Broadmoor. In considering whether transfer and admission to Broadmoor would not be justifiable as both necessary and proportionate under Article 8(2) given the extent to which it would invade the appellant’s right to a private and/or family life the court would be bound to reach its own view as to whether the transfer was necessary because the risk presented by the Claimant could not safely be managed in a medium security hospital. This would be likely to raise the same issues as those arising on a judicial review challenging the decision on the substantive grounds to which I have referred.

It follows that if, contrary to what I have held, it were held that the decision to transfer the Claimant to Broadmoor determined an autonomous civil right, so as to engage the protection of Article 6, in my judgment there would be a breach of Article 6 unless on a claim for judicial review the Administrative Court were to exercise a fact finding or reviewing function. However provided that the Claimant were able to demonstrate a good arguable claim that the decision would or did lead to a breach of his Article 8 rights in my view the court would be bound to exercise such a function. In that event there would be no breach of Article 6.

It follows that, like Simon Brown LJ in Wilkinson, I consider that if I had concluded that the Administrative Court’s role on such a challenge was as narrowly confined as contended for by the Claimant, there would have been a failure to comply with Article 6, always assuming, that contrary to what I have held, the decision to transfer him to Broadmoor constituted a determination of an autonomous civil right..

This issue arises only if Article 6 is engaged in decisions to transfer patients from a medium security to a high security hospital and it is not satisfied by the availability of judicial review. In Adan v Newham London Borough Council [2002] WLR 2120 the Court of Appeal held that (on the authorities which then applied) the regime for deciding homelessness cases would not comply with Article 6 in a case which turned on a dispute of primary fact. The majority of the Court of Appeal held that in such a case the authority could and must “contract out” its homelessness function to someone who was both independent and impartial – see (Brooke LJ with whom David Steel J agreed) at paras 43 – 45.

Mr Chamberlain submitted that that option would not be available in the present context. In the absence of a statutory power to do so it would be unlawful for either the transferring or receiving hospital to delegate to another person its function of respectively whether to transfer or admit a patient. In Adan’s case the local authority had an express statutory power to contract out its decision making functions in relation to homelessness.

Further, even if the transferring or admitting hospitals were empowered to contract out their respective functions to some other person or body he submitted that it is not clear that Article 6 would require them to do so. There is another alternative, namely expanding the jurisdiction of the Judicial Review Court to enable it to decide questions of fact as was done in Wilkinson see by analogy the judgment of Hale LJ in Adan in paragraph 17A etseq.

Mr Squires submitted that insofar as regulation 7 of the 2008 Regulations required the transferring hospital to decide whether to transfer and that decision cannot be contracted out to another body, that is not a result of primary legislation and there is nothing to prevent the Regulations being amended. In the rejoinder the Secretary of State submitted that that is incorrect. The 2008 Regulations are made under s.19 of the 1983 Act which contained nothing to authorise the delegation of authority over transfers to the First Tier Tribunal whose functions under the 1983 Act are to find by part V thereof. Thus there is no authority for contracting out the transfer function to a Tribunal.

This issue arises only if a decision whether to transfer a patient from a medium security hospital to a high security one engages Article 6, judicial review applying a Wednesbury approach is insufficient to comply with the procedural requirements of Article 6, the detaining or receiving hospital is not empowered to contract out its function of transferring or admitting patients to another person or body and it is not possible to provide full jurisdiction by extending the ambit of judicial review.

In those circumstances the Secretary of State understood all parties to agree that the 1983 Act cannot be “read down” under s.3 of the Human Rights Act to confer on the First Tier Tribunal (or any other body) a jurisdiction to decide whether a patient should be transferred. Any such reading down would be an exercise in “judicial vandalism” –see by analogy R (Anderson) v Secretary of State for Home Department [2003] [1A C837, per Lord Bingham at paras 30-31.

In those circumstances the Secretary of State submitted that the court would have no option but to grant a declaration of incompatibility. He submitted that the declaration would be that the 1983 Act is incompatible with Article 6 in so far as it makes no provision for an independent and impartial tribunal to determine whether a patient should be transferred to a high security hospital. If such a declaration were granted it was submitted that it would be sufficient for the issue of transfer to be referred to the Tribunal after the transfer had taken place. Reliance was placed on an analogy with s.75(1) of the 1983 Act which requires the Secretary of State when he recalls a restricted patient hospital to refer his case to the Tribunal within one month of the recall. That had been held sufficient to satisfy the procedural requirements of Article 5(4) see Secretary of State for Justice v Rayner [2009] 1 WLR 310. If a post-recall reference is sufficient in a case where a patient is moving from liberty to detention he submitted it was submitted that it must also be sufficient when a patient is moving from conditions of medium security to conditions of high security.

In response Mr Squires said that the claimant did not submit that a declaration of incompatibility is required and that ordinary declaratory relief would suffice. That was on the basis that Regulation 7 could be amended and that there is no provision of primary legislation which prevents an independent appeals panel determining appeals by those who wish to challenge a hospital transfer. If that were wrong the claimant had no objection to a declaration of incompatibility being made. In that event he submitted that if the current legislative provisions are incompatible it is best left to Parliament to determine how the incompatibility should be cured and at which stage any appeal right should be available.

Further he submitted that a better analogy than that with recall cases are the more obviously analogous provisions applicable in Scotland. Pursuant to the Mental Health (Care and Treatment) (Scotland) Act 2003 where notice is given to a patient of a transfer there is a right to appeal before the transfer takes effect. Where the transfer is urgent such that no advance notice can be given or the Tribunal decides that the patient should be transferred pending appeal the appeal will be heard after the transfer. The claimant submitted that such an approach balances the right to a fair hearing with any requirement for urgency that may arise in a particular case.

As to the post-recall analogy relied on by the Secretary of State Mr Squires submitted that whether fairness requires a hearing before or after a decision is taken depends on the nature of the decisions. When a patient is recalled to hospital because it is no longer safe for him to be at liberty it is very difficult to envision a situation in which it will be possible to accord him a hearing before the recall. By contrast, and as the Scottish scheme illustrates, there will plainly be cases of proposed transfer in which it will be possible as well as desirable to hold a hearing before the transfer takes place. It was submitted that the instant case is one such example. The Claimant was referred to Broadmoor on 4 August 2010 but not transferred until 6 October 2010. There was no reason why a hearing could not be held in the interim.

That fairness may require a hearing before the decision is taken was said to be illustrated by SSHD v SP [2004] EWCA Civ 1750. In that case the Court of Appeal considered whether a 17 year old placed in segregation at a Young Offenders Institution was entitled to be heard before the decision to segregate was taken. The Secretary of State argued that it was sufficient that prisoners could appear at a hearing before the Segregation Review Board within 72 hours of the segregation, but that was rejected by the Court of Appeal. It held that giving an opportunity for comment only after a decision of that nature was taken was not a sufficient safeguard to ensure common law fairness.

The Court of Appeal at [57-58] endorsed the conclusion of Jack J at first instance:

“[All of the post-decision procedures], however, come after the order has been made and [the prisoner] has been transferred. It is the initial decision which is the most important step, and which an inmate would most like to have the opportunity to address. It is often the case in any situation involving a decision of an authority that once a decision has been made it is difficult to change it.”

The Court of Appeal continued at [58]:

“[The SSHD’s counsel] showed that decisions to place a person in the segregation unit can be revoked quickly and before the expiry of the first three days – for example she said if the prisoner has calmed down. That does not, in my view meet the point being made by Jack J. Any decision to remove to a segregation unit will be made based on a factual basis. The best time to check on the factual basis by asking for the prisoner’s comments is before the decision is made. As Jack J rightly observed once a decision is made, it is difficult to change it. This is particularly so when a decision has been made on a factual basis and when the person subject to a decision seeks to persuade the decision maker, after the decision has been made, that the factual basis on which he acted is wrong. Inevitably the decision maker will be reluctant to conclude that his original decision was wrong. Simon Brown LJ in R v SSHD ex parte Hickey (2) [1995] 1 WLR 734 at 744 made the point that “it is difficult to suppose that [a decision maker] can remain as open-minded as if no clear decision has been taken.””

It was submitted that those observations apply equally to the instant case. The decision to transfer was taken on a factual basis (namely “discovery” of two weapons manufactured by the claimant) which it was submitted was erroneous. That was precisely the kind of case in which fairness required a chance to make representations before the decision was taken. That applied to the timing of any hearing pursuant to Article 6. Even if Article 6 is not engaged, however, it was submitted that it applies to the common law fairness arguments made by the Claimant namely that he should have been permitted the opportunity, whether through his solicitors or directly, to make representations prior to transfer.

In response Mr Chamberlain in the Rejoinder submitted that it was not the court’s function to decide what is the best system. That is for the Government and Parliament. The court’s function is to decide what would satisfy Article 6. As to that a system in which references to the Tribunal take place after the relevant event has recently been found to comply with Article 5(4) in a case where the patient is being recalled to hospital (i.e. moving from liberty to detention): See Secretary of State of Justice v Rayner [2009] 1 WLR 310. If an after-the-event tribunal is sufficient to satisfy Convention standards there it must be sufficient here where the patient is moving from one type of detention to another.

As to Secretary of State for Home Department v SP it was irrelevant. That was a natural justice case i.e. one concerning common law requirements, not a case concerning the content of Convention standards or procedural fairness under Article 5(4) or Article 6.

In my judgment it would be inappropriate for me to seek to answer either of these questions. The third question would only arise if I were wrong to hold that there was no determination of the Claimant’s autonomous civil rights by the decision to transfer him to Broadmoor and that, even if it did constitute such a determination, the availability of a factual review on a claim for judicial review would satisfy the procedural requirements of Article 6. Given that this is a case in which the Claimant has abandoned any substantive challenge to his continued detention in Broadmoor, in my judgment no useful purpose would be served by my embarking on a full response to this question, raising as it does general questions as to whether it is legally possible and/or necessary for the transferring or receiving hospital to delegate authority over transfers to the First tier Tribunal or to some other independent and impartial person or body.

In my view the same applies to the fourth question which, similarly, would only arise if I am wrong about the non-engagement of Article 6 and also about the availability of a factual review on judicial review and if there is no legal power or obligation on the receiving or referring hospital to delegate their functions to an independent person or body.

I confine myself to the observation that the solutions contemplated in the parties’ submissions on these questions involve a solution broadly similar to that adopted in Scotland. I have already expressed the view that an independent specialist tribunal such as that to which patients are entitled to appeal in Scotland would be the natural and obvious forum for the ultimate resolution the kinds of issues raised by the Claimant in this case.