On 14 May 2008 the Claimant was convicted of arson with intent to endanger property. She received an indeterminate sentence, the minimum term of which has expired. The issue in the case is the allegation that there was excessive and unlawful delay before the Claimant’s subsequent detention, pursuant to a direction of the Secretary of State, was reviewed by a judicial body. Permission was refused on the papers and oral renewal, but was granted on appeal on 18 July 2013.

The Claimant was born on 20 September 1963. She has a long history of mental health problems, demonstrating aggressive and self-injurious behaviour from the age of nine or ten. She has spent several periods in hospital in relation to her mental health, both on a voluntary basis and under the Mental Health Act 1983. In 1982 she was made subject to a Hospital Order following an offence of attempting to administer poison to her father. There is a “well-documented history of repeated self-harming and aggressive outbursts during her time in hospital”. The Claimant has committed numerous offences including two previous convictions for arson in 1980 and 1981, a number of assaults, assault on police, an offence of causing grievous bodily harm with intent and a previous offence of possession of an offensive weapon.

In 2004, the Claimant absconded from her residential psychiatric unit in north Wales and jumped from a bridge over a motorway, an episode which left her with significant acquired brain injury. She was also left with considerable physical difficulties and limited mobility as a result of this incident. She has a diagnosis of “Emotionally Unstable Personality Disorder” which, according to medical opinion in 2012, is characterised by:

“A tendency to act impulsively and without consideration for the consequences. There is a liability to outbursts of emotion and an incapacity to control the behavioural explosions. There is a tendency to quarrelsome behaviour and to conflict with others, especially when impulsive acts are thwarted or censored and to self-destructive behaviour, including suicide gestures and attempts.”

In early 2008, the Claimant and her partner were living in poor accommodation and were having problems with neighbours. The Claimant’s partner committed a robbery and was remanded in custody. The Claimant became distressed in the absence of her partner, took an overdose of prescribed morphine medication and was admitted to a psychiatric hospital as a voluntary patient. However she discharged herself after a few days. It was at that stage that the index offence was committed. The Claimant was living in one of five adjoining flats within a property that was part of a terrace of other homes. She set fire to a bundle of newspapers she had placed on her bed and then left home. Her case was that she had taken some steps to ensure that no-one was hurt by telephoning the one resident of adjoining property whom she knew to be present. However, the sentencing judge commented that the potential to damage property and life was “devastating”. She received a sentence of imprisonment for public protection. The minimum period to be served before release expired in September 2009. The Claimant remained a prisoner at HMP Styal until July 2010.

On 20 July 2010, the First Defendant directed that the Claimant should be transferred to hospital under Section 47 of the Mental Health Act 1983, and further made a direction under Section 49 of the Act restricting the Claimant’s discharge. The Claimant was transferred from HMP Styal to St Andrew’s hospital, Northampton on 27 July 2010.

According to the subsequent decision of the First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health) [“the Tribunal”] given following a review on 12 December 2011, the Claimant had a troubled time in St Andrew’s hospital, although she made some progress as time went on. The Tribunal found that:

“The patient’s time at St Andrew’s hospital has been marked by acts of self-harming and numerous, albeit increasingly infrequent, acts of aggression, mainly verbal, but including physical assaults on others and attempts at causing damage … the most recent assaults occurred in January 2011; in June 2011 when the patient assaulted staff members … and in September 2011 when the patient, together with another, took a member of staff hostage and later assaulted her … the patient has lost her temper on three occasions since September 2011. On each occasion there was no assault and the incident was de-escalated by a staff member, interventions which increasingly the patient is willing to accept.”

It was in that context that, on 24 May 2011, the Claimant applied to the Tribunal for a review of the extent to which her detention was in accordance with the 1983 Act. According to the scheme of the legislation in a case of this kind, which I summarise below, the Claimant must apply first to the Tribunal for a notification to the Secretary of State that, if subject to a Restriction Order rather than a Restriction Direction, she would be entitled to be discharged. If the Secretary of State does not himself discharge following such a notification, then the matter falls to be referred to the Parole Board to consider her release.

The first hearing before the Tribunal took place on 1 August 2011. The Claimant gave evidence to the Tribunal to the effect that she did not suffer from a mental disorder and that she regarded her detention in hospital as “grossly inappropriate”.

At this hearing the Tribunal was in receipt of evidence from the Claimant’s Responsible Clinician Dr Chu, a locum consultant neuro-psychiatrist. Dr Chu noted that the Claimant’s insight into her own problems, and their effect on her ability to function in the community, was limited. Dr Chu also informed the Tribunal that in her opinion St Andrew’s was unable to offer the patient further therapy and the time had come for her to move on. This hearing was adjourned so that a report from an independent expert, instructed on behalf of the Claimant, could be obtained.

The Tribunal reviewed the Claimant’s case on 12 December 2011. By then Dr Chu had submitted a second report, repeating her view that St Andrew’s was unable to offer the patient further therapy and concluding that the Claimant:

“would greatly benefit further from having her personality disorder addressed in an environment where she could be safely managed and adequate support can be given to facilitate her gradual integration back into the community.”

The Tribunal noted that since August 2011 the Claimant had begun to engage with the ward psychologist, and for the first time had requested a sedative drug on occasion which they regarded as “evidence of recognition that she needs help in stabilising her mood”. There had been no assaults since September 2011 and the evidence led the Tribunal to conclude that the Claimant was making significant progress. The Tribunal received evidence in the course of the hearing that recent discussions had identified –

“non-clinical establishments in Wales qualified to provide necessary 24-hour support and management of the potential risks that the [Claimant] presents to herself and others. The members of the clinical team who gave evidence to the Tribunal on 12 December 2011, with varying degrees of caution, supported this pathway and, were it available, opined that the continued detention of the patient in hospital for treatment would be neither appropriate nor necessary. They emphasised that there would have to be, in addition, a package of clinical support for the patient, including a psychiatrist and a psychologist to build on the progress the patient was currently making.”

The Tribunal went on to find that it was time for the patient to move on from St Andrew’s, and that:

“Further detention there on any but a provisional basis pending the identification of a step-down placement, whether a low security or unlocked unit or an appropriately staff hospital, would risk therapeutic regression. Although the [Claimant], by reason of her emotional lability, continues to present a diminishing risk to her own health and safety and to the safety of others, the Tribunal is not convinced that this necessarily requires her continued detention in a hospital…. The Tribunal unreservedly accepts the evidence of the clinical team that to return the patient to prison to continue serving her sentence would be [to] put at risk all the progress she has made since her admission to St Andrew’s.”

The Tribunal went on to give carefully calibrated indications as to the Claimant’s future:

“The issue is whether the [Claimant’s] therapeutic needs require continued detention in a low secure unlocked unit; or whether they can be met in an appropriately staffed hostel. In the judgment of the Tribunal, it is for [the Claimant’s care co-ordinator] to investigate what is available and if and when he has identified a hospital placement, it will be for that establishment, together with members of the clinical team who will then be responsible for the care of the patient, to assess her and the level of risk she continues to present; and to decide whether it can be managed in that environment; and whether it can adequately test out the [Claimant’s] ability to cope with time spent on her own outside the environment of the placement. If and when such an establishment agrees to receive her, it will be for the Secretary of State, depending upon his decision under Section 74(2)(b) of the Act, to authorise overnight leave there. If it be the case that he gives notice to the Tribunal that the patient may be discharged, the Tribunal will re-convene to consider the case further and if necessary, as it would be empowered to do under Section 74(6) and 73(7) of the Act, defer her discharge until the conditions set out above have been met.”

It was on the above basis that the Tribunal notified the Secretary of State that the Claimant would, if subject to a Restriction Order rather than a Restriction Direction, have been entitled to be conditionally discharged from detention in hospital under the conditions they set out, and that the Tribunal would, if necessary, have deferred the patient’s conditional discharge until it was satisfied that the necessary arrangements had been made for the purpose of such conditional discharge. The Tribunal further notified the Secretary of State that in the event of the Claimant not being discharged, the Tribunal recommended, under Section 74(1)(b) of the Act, that she should continue to be detained in hospital.

The conditions set out for discharge were as follows:

“The patient shall:

1.

Reside where directed by his (sic) responsible clinician for the time being and abide by the rules of the placement;

2.

Attend all appointments arranged for him with his responsible clinician for the time being;

3.

Be compliant with all treatment, both pharmacological and psychological, as may be prescribed for him by his responsible clinician for the time being;

4.

Attend all appointments with and allow reasonable access to him by his social supervisor for the time being;

5.

….

6.

….”

The Ministry of Justice received the Tribunal’s conclusions on 19 December 2011. A review of that decision was undertaken on 9 January 2012. During that period, the Claimant’s solicitors had been pressing the Ministry for a decision. On 13 December 2011 they had e-mailed asking whether the Claimant would be discharged or whether her case would be referred to the Parole Board. On 15 December, the Ministry responded indicating it had not yet received the decision. On 21 December, the Claimant’s solicitors (Campbell Law) e-mailed again to the Ministry chasing a response and supplying a copy of the Tribunal decision. On 6 January 2012, the Claimant’s solicitors again pressed the Ministry for a response. In fact it was on the same day that the Public Protection Casework Section [“PPCS”] was notified of the Claimant’s case. The PPCS is the relevant group of officials dealing with such matters.

The sequence of events which followed are described in evidence from Gordon Davison, a Senior Civil Servant with the National Offender Management Service [“NOMS”]. In his first witness statement, dated 28 February 2014, Mr Davison described how the PPCS, receiving the case on 9 January, began to operate the Generic Parole Process [“GPP”], a policy set out at the time in Prison Service Order 6010. Before analysing what they did, it is conceded by the First Defendant that it was an error to apply this policy. In his second witness statement, dated 17 March 2014, Mr Davison sets out how a different policy should have been applied. Prison Service Instruction 29/2010 introduced revised chapters to Prison Service Order 4700 “the Indeterminate Sentence Manual”. Chapter 15 addresses the position of “mentally disordered indeterminately sentenced prisoners”. The document was issued on 12 April 2010 and came into effect on 19 April 2010. This was therefore the relevant published policy in relation to a prisoner such as the Claimant. Mr Davison frankly admits that this policy document was not known to him at the time he made his first witness statement and goes on:

“…regrettably, I do not believe this document was known to most caseworkers in the Public Protection Casework Section or Mental Health Casework Section, including those who were dealing with [LV’s]’ referral following notification from the First Tier Tribunal.”

It seems clear that the relevant officials did not know of, and therefore did not follow, the appropriate public policy in force at the time.

Chapter 15 of PSO 4700, as amended, deals with prisoners in the Claimant’s position as follows:

“15.18

Preparation of Parole Board dossier following discharge recommendation

In cases where the lifer/IPP is tariff expired/about to become tariff expired and MHCS has informed PPCS the Tribunal has recently recommended that the prisoner is ready for conditional discharge but if not discharged s/he should remain in hospital, PPCS must arrange for the case to be referred to the Parole Board for listing for a hearing under section 28 of the Crime (Sentences) Act 1997, as soon as possible, to consider suitability for release direct from hospital.

15.19

MHCS should provide PPCS with the papers considered by the Tribunal which, along with its decision and reasons, should be attached in the ‘Relevant Papers’ section. The RC report should normally provide a summary of progress in hospital.

15.20

The Tribunal papers will normally include a:

•

statement by the Secretary of State setting out the circumstances of the offence, the events leading to admission to hospital and observations on the patient’s suitability for discharge.

•

list of previous convictions

•

clinical reports, and

•

a social work report.

15.21

PPCS will commission a report from the Offender Manager (IPP)/Home Probation Officer (Lifers), who has 28 days in which to complete and return the report. PPCS will also prepare the skeleton dossier for the Parole Board review and will send it together with the Offender Manager (IPP)/Home Probation Officer (Lifers) report, to the RC at the hospital within 7 days of receiving the Report. PPCS will also forward a copy of the dossier to the Parole Board. It is the responsibility of the RC/hospital managers to ensure that the dossier is disclosed to the lifer/IPP and that s/he submits any representations to the Parole Board within 28 days.

15.22

In cases where an Offender Manager/HPO has not been allocated to the case, PPCS will contact the Probation Area involved at the time of the sentencing to request that a Supervising Probation Officer be allocated to the case. In cases of difficulty, the NOMS Offender Management and Assessment Unit must be contacted for assistance.

15.23

Consideration by the Parole Board

Cases where the prisoner is detained in hospital and a Tribunal recommendation for discharge has recently been received are normally considered at an oral hearing by the Parole Board using a reduced timetable of 13 weeks. The oral hearing will take place at the hospital in which the prisoner is being detained.”

Mr Davison describes in his first witness statement how, in applying the GPP, the First Defendant’s officials set a timetable on the casework system for an oral hearing before the Parole Board in August 2012. This resulted in a target for the report from the Offender Manager of 28 March and a target for the dossier to be disclosed to the Parole Board by 4 April, just over 13 weeks from the commencement of the GPP. This contrasts with the “reduced timetable” envisaged by PSO 4700 which aimed for a hearing by 13 weeks.

In fact, the PPCS sent a core, or skeleton, dossier to the Parole Board by post on 2 March 2012 which was received on 6 March. According to the evidence of Terry McCarthy, a senior official with the Parole Board, this dossier was complete but for two documents. The first was the report from the Offender Manager and the second was a record of the sentencing remarks from the Court. The Offender Manager had in fact attended the Claimant’s “Care Programme Approach Meeting” at St Andrew’s hospital on 6 February and met the Claimant following that meeting in order to complete the report. Thereafter the preparation of the report was not completed until 28 March. Mr Davison explains in his first statement that this delay was due to the absence of the Offender Manager on sick leave. There is no further detail of this sick leave or its extent. The report was completed on 28 March, countersigned by the Offender Manager’s superior on 29 March and submitted to PPCS on that day. It was transmitted to the Parole Board on the same day. By then it appears that the Parole Board was in possession of the sentencing remarks, and the dossier was complete.

On 4 April 2012, a single panel member of the Parole Board issued case management directions, amongst other things requesting that the Offender Manager provide a short addendum report by 30 April. However, these directions were not transmitted to the PPCS or to the Offender Manager until 23 April. On receipt of the directions, Mr Davison explains that the PPCS telephoned the Offender Manager and on 27 April e-mailed the directions to the Offender Manager. PPCS suggested an amended target date for the report of 4 May. Hence the officials amended the directions of the Parole Board. It seems that the amended target was not communicated either to the Parole Board themselves or to CDMK, the solicitors acting for the Claimant before the Parole Board.

On 3 May PPCS spoke to the Offender Manager to chase the report and chased again on 10 May. On 14 May the Offender Manager apologised by e-mail, explaining that she had had to take special leave for a bereavement. However, her promise to complete the report that day was not fulfilled. On 31 May, PPCS again chased the Offender Manager, without response. A further chaser e-mail from PPCS on 27 June was followed by receipt of the addendum report on that day, some seven weeks later than the amended target date.

Two days after the addendum report was received, on 29 June, Natalya O’Prey, a lawyer with the Second Defendant, e-mailed the solicitor from CDMK representing the Claimant in her proceedings before the Parole Board. Ms O’Prey had already telephoned to speak to the Claimant’s solicitor and the e-mail was a follow-up. The e-mail informed the solicitor that her client had instructed a different firm –

“To act for her in relation to a judicial review she has filed against both the Parole Board and the Secretary of State for Justice. This claim argues that both Defendants have violated [LV’s] Article 5(4) rights in delaying her review before the Parole Board, following the MHRT hearing that discharged her from the MHA section.”

Ms O’Prey went on to say that she intended to put the case before a single Parole Board member to consider whether there should be an oral hearing “now and whether such a hearing ought to be expedited”. However Ms O’Prey sought to find out the solicitor’s view of the case before doing so.

Ms O’Prey followed up her earlier e-mail with a further e-mail of 3 July. This produced a short e-mail in response from CDMK, who was on holiday and wished to take instructions on the point. The Claimant was moved to Plas Coch on 5 July. Plas Coch is the residential hospital in Wales which had been identified previously as the Claimant’s desired destination, to which she would be conditionally discharged.

On 9 July permission to apply for judicial review was refused in an oral renewal hearing in these proceedings. On the same day Ms O’Prey informed CDMK of that outcome, and indicated that she would wait to hear the Claimant’s solicitor’s representations as to how the matter before the Parole Board should proceed. Another official for the Parole Board chased the matter on 24 July. On 30 July CDMK responded. The solicitor indicated that she was awaiting instructions from her client. On 6 August the Parole Board prompted again and on 8 August the Claimant’s solicitor indicated that there were no further representations to make in relation to the Offender Manager’s report. Aside from other matters, she also indicated that the Claimant would be seeking release at her review.

Following those indications, the Parole Board placed the file before a single member. Directions were made on 17 August, but not sent out until 5 September. The essential direction was that a psychiatrist’s report from Plas Coch was required –

“…regarding current risk factors and any recommendation for release into the community. Once this report is available the Offender Manager will be required to provide an updated parole report outlining risk assessment, from her perspective and overall case management responsibilities.”

Hence the hearing had been deferred for three months. The letter indicated that once the directions had been complied with the case would be “put forward for the next scheduled listing exercise. Scheduled listing exercises take place three months ahead of the hearing month”. When these directions were sent to the parties on 5 September 2012 the covering e-mail from the Second Defendant requested witness availability for December 2012 and January and February 2013.

The directions indicated that the psychiatrist’s report should be supplied by 31 October. On 24 October and 13 November the Second Defendant chased the report by e-mail to NOMS. On the latter date NOMS informed the Parole Board that the locum psychiatrist at Plas Coch had left and that his replacement (Dr Gupta) was working on a report.

On 19 November, the Second Defendant received a copy of Dr Gupta’s psychiatric report. The report stated that he had taken over as Responsible Clinician on 5 November. In the course of the report Dr Gupta stated his view that the Claimant had a mental illness (personality disorder) and would benefit from treatment at Plas Coch. He also recommended that Plas Coch be given a further three to four months to observe the Claimant’s progress before a definitive assessment of her risk in the community could be made.

It is worth noting that the solicitors acting for the Claimant in the judicial review (Campbell Law) had been made aware on 19 September that the locum consultant psychiatrist at Plas Coch, Dr Mansour, would be leaving his post at the end of September. These solicitors had sought a meeting with Dr Mansour to pursue with him the Claimant’s belief that she was not suffering from a mental illness and, it would seem, to explore whether there was any basis for the decision that had been taken by the Tribunal or for continued residence in Plas Coch. Dr Mansour, in addition to informing the solicitors of his impending departure, had indicated his view that there was a current mental disorder, and that he and his team

“would … encourage [LV] to accept that she has mental health problems, that she needs professional help and that it is for her best interests that she cooperates with mental health professionals.”

Dr Mansour went on to emphasise that in his view the Claimant could not cope on her own and required “some protecting measures” to avoid the recurrence of similar problems to those which had arisen in the past.

On 20 November 2012, the Second Defendant informed the parties that the case was ready to list for oral hearing and that cases were currently being listed for February 2013. The parties were asked for dates for February, March or April. Such a period for listing was consistent with the request by Dr Gupta for a three to four months period for assessment beginning in the middle of November.

On 11 December 2012 and 7 January 2013 CDMK requested updates on the listing from the Second Defendant. On each occasion the Second Defendant responded on the same day indicating that they were awaiting a date when the relevant panel could convene. On 21 January 2013, the Second Defendant sent notice to all parties of the oral review hearing to be held at Plas Coch on 12 March.

On 21 January NOMS informed the Second Defendant that the Claimant had absconded from Plas Coch in November 2012 and again in early January 2013. On 27 February the Second Defendant was provided with an addendum report from the Offender Manager dated 19 February. The Offender Manager’s conclusion was that the Claimant’s risk of causing serious harm to the public remained high, and had not reduced sufficiently to enable her to be safely managed within the community. On the same day, the Chair of the panel directed Dr Gupta to provide an addendum report assessing the Claimant’s risk in the community and suitability for release.

In his addendum report of 1 March, Dr Gupta indicated that the programme of testing the Claimant on unescorted leave had been delayed by the Claimant’s two abscondings and he recommended an additional period of between three and six months to test out the Claimant on unescorted community leaves.

The oral review hearing took place on 12 March. At that hearing, counsel for the Claimant indicated that the Claimant was no longer seeking a direction for release. Counsel made an application to the panel to adjourn the hearing for six months so that the Claimant could engage in a programme of leave. That application was refused by the panel. In a decision handed down on 21 March, the panel decided not to direct release or to direct transfer to open conditions.

A critical argument advanced on behalf of the Claimant by Mr Southey QC is that essentially, on the facts of this case, the decision to be taken by the Parole Board was a repetition of the decision taken by the Tribunal. He says each body was concerned with the Claimant’s mental state and that all the risks to be considered derived from her mental state. With that argument in mind, it is necessary to consider with some care the reasoning of the Parole Board.

The decision of 12 March began by an analysis of the history which need not be repeated. When addressing risk factors, the Parole Board said this:

“Factors identified by the Panel as being linked to your offending and future risk of harm are complex. You suffered a disturbed and traumatic childhood; your father was physically and emotionally abusive and you report to have been sexually abused whilst in care. Your experiences adversely affected your emotional and psychological development and you presented with behavioural problems (aggression and self-harming) from childhood. You have a long-standing diagnosis of Emotionally Unstable Personality Disorder (Borderline Type) and have, on many occasions, been admitted to psychiatric hospital. In 2004 you absconded from hospital and jumped from a bridge; you sustained a traumatic brain injury and reports refer to significant impairment in your visual and short-term memory and language function. Over a period of many years your presentation has been characterised by disturbed and impulsive behaviour, emotional disregulation, a low tolerance of frustration, self-harming behaviour that on occasion could have life-threatening consequences, aggressive outbursts. Your previous convictions are also evidence that when your mental state is not stable, you have a propensity to commit serious offences.”

The Panel then addressed the Claimant’s progress since the last review, predating transfer from HMP Styal. The Panel observed that:

“… you have not undertaken any meaningful interventions to address your offending behaviour. However, you were clear in your evidence that you do not accept that you pose a risk to either yourself or others. Whilst you accept that the personality problems you did suffer from were associated with your aggressive and antisocial behaviour…. it is your view that these have not been present since you sustained the brain injury in 2004. You explained that its consequences were that you had to re-learn everything like a child; you said that at the time of the index offence you did not comprehend the implications of your actions but now are able to take responsibility and communicate effectively with others when you need help. You believed that with the right aftercare, you would be able to live pro-socially in the community…”

The Panel’s assessment of current risk began with the assessment at the time of sentence: that assessment was that there was a significant risk of re-offending “because of your mental health problems and your history of disturbed behaviour and offending”. The current risk at the time of the hearing was of a medium risk of re-offending and “as posing a high risk of serious harm to the public should you return to the community at this time”. The Panel noted that “in the absence of any offending behaviour work and evidence of your on-going impulsivity, you continue to pose a high risk of fire setting”.

In their conclusions the Panel made it explicit that they kept in consideration a range of factors relevant to risk:

“… the very serious nature of the index offence, your long history of seriously disturbed and challenging behaviour that has put both yourself and others at serious risk. Crucially, there remains essential risk reduction work for you to complete… for your offending behaviour to be addressed and for the progress you appear to have started to make to be built upon and tested through increasing exposure to the community through a programme of leave. In summary, the Panel accepted the argument presented that your risks of aggression and fire-setting are intrinsically linked to your mental disorder and that those risks have not reduced to a level commensurate with their safe management in the community. The Panel was not persuaded by your personal view that your personality problems have not been relevant since your brain injury in 2004 as numerous mental health professionals, including consultant forensic psychiatrists, have confirmed the relevance of both your Personality Disorder and the effects of your brain injury to your current presentation and risk.”

It was on that basis that the Panel declined to direct release. That substantive decision has not been challenged.

In the light of authority, Mr Southey accepts that he cannot submit as a matter of principle that the system by which the Claimant’s release was considered by two successive bodies, the Tribunal and the Parole Board, is in conflict with the Claimant’s Article 5(4) rights. He does say that on the facts of this case a hearing before a single body would have been both practical and appropriate. He goes on to argue that, on the facts as they are here, if there were to be two hearings before two bodies, the state had a legal obligation to ensure expedition throughout the overall process. He says there was no such expedition, since the review of the legality of the Claimant’s detention took almost 22 months from the date when the Claimant applied to the Tribunal on 24 May 2011 to the decision of the Parole Board on 21 March 2013. Within that period, Mr Southey makes a series of specific complaints as to periods of delay.

The Mental Health Act 1983 provides two parallel systems for the restriction of discharge from hospital of offenders suffering from mental disorder. By Section 37 of the Act a Crown Court has the power to order hospital admission or guardianship. By Section 41(1) of the Act, where a hospital order has been made:

“… and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, … further order that the offender shall be subject to the special restrictions set out in this section ...; and an order under this section shall be known as “a restriction order”.”

Section 47 of the Act provides that where a serving prisoner is shown to be suffering from mental disorder, “of a nature or degree which makes it appropriate to be detained in a hospital for medical treatment” the Secretary of State may make a “transfer direction” removing the prisoner to hospital. The criteria for a hospital order and a transfer direction are indistinguishable. Section 49 of the Act provides:

“49(1) Where a transfer direction is given in respect of any person, the Secretary of State, if he thinks fit, may by warrant further direct that that person shall be subject to the special restrictions set out in section 41 above; and where the Secretary of State gives a transfer direction in respect of any such person … he shall also give a direction under this section applying those restrictions to him.

(2)

A direction under this section shall have the same effect as a restriction order made under section 41 above and shall be known as “a restriction direction”.”

Thus far, the provisions of the Act mean that there is little or no distinction between the effect of a hospital order and a restriction order made by a court, and a transfer direction and restriction direction made by the Secretary of State. However, the provisions in relation to discharge of such patients are significantly different.

A patient who has been made the subject of a hospital order and a restriction order by a court is a patient who is “liable to be detained otherwise than under Section 2” of the 1983 Act. Section 72(1)(b) provides as follows:

“72(1)(b) the [appropriate] tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—

(i)

that he is then suffering from 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; or

(ii)

that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or

… or

... or

(iii)

in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself;

…

73(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, … the tribunal shall direct the absolute discharge of the patient if—

(a)

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

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

(2)

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

(a)

paragraph (a) of that subsection applies; but

(b)

paragraph (b) of that subsection does not apply,

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

It follows from sections 72 and 73 that where the detention of a patient derives from a hospital order and a restriction order then, in the relevant circumstances, the Tribunal has the powers absolutely or conditionally to discharge the patient.

The situation is different where the patient’s detention derives from a transfer direction and a restriction direction. Then the relevant statutory provisions are found in Section 74 of the Act:

“74(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to…a restriction direction, … the tribunal—

(a)

shall notify the Secretary of State whether, in its opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and

(b)

if the tribunal notifies him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.

(2)

If in the case of a patient not falling within subsection (4) below—

(a)

the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and

(b)

within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged,

the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.

(3)

Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the tribunal has made a recommendation under subsection (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

(4)

If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal has made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison (etc.)

…

(5A) Where the tribunal has made a recommendation under subsection (1)(b) above in the case of a patient who is subject to a restriction direction …—

(a)

the fact that the restriction direction … remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and

(b)

if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released.”

The reason for the distinction between these two regimes for discharge, is in my view, clear. In making a hospital order and a restriction order the judge in the crown court is conducting the definitive sentencing exercise in the case. Whereas, the prisoner who is transferred to hospital and made subject of a restriction direction may very likely be suffering from a mental disorder which arose after his sentence began. The statutory provisions preserve the capacity of such a prisoner to apply to the Parole Board irrespective of – indeed as if there had never been – a transfer direction and a restriction direction. The considerations which arise for the Parole Board are different and additional to those which arise for the Tribunal, either in respect of a patient subject to a hospital order and a restriction order, or in respect of a patient subject to a transfer direction and a restriction direction.

There is a conceptual distinction between the offender made subject to a hospital order and a restriction order by a court and the offender who, whilst a serving prisoner, is made the subject of a transfer direction and a restriction direction. A hospital order, with or without a restriction order, is a disposal normally appropriate only where the offending in question is accepted as proceeding from the mental disorder itself. By contrast, in the case of an offender made the subject of a transfer direction and restriction direction, the court’s disposal assumes ordinary responsibility for the criminal act even if the latter may, in some cases, be linked to the mental disorder which subsequently is the foundation for the transfer and restriction directions. In the first category there is an equation between the mental disorder and the offending and hence, if the mental disorder is held to be in abeyance, the risk of future offending can be held to be in abeyance. In the latter case, criminal responsibility subsists. The origin of the offending is not to be found wholly in the mental disorder. The finding that the mental disorder no longer requires hospitalisation cannot logically be held to have abolished the risk of future offending. Hence, there is an obvious need to consider future risks derived from other factors than the mental disorder.

Arguably the complication in relation to such a scheme only arises where the relevant patient has been transferred to hospital whilst serving an indeterminate sentence. If the patient is serving a determinate sentence which has not yet been completed, then the effect of the Tribunal’s ruling under Section 74 means simply that the patient will return to serve the balance of the term in prison. If the prisoner’s determinate term of imprisonment has been completed, then the consequence of a recommendation by the Tribunal should be straightforward consideration for release by the Secretary of State. Where, as here, there was a current indeterminate sentence but the minimum custodial period had been completed, then a recommendation for discharge placed the offender in the same position in respect of all applications to the Parole Board as if the transfer and restriction order had never been made.

Article 5(4) of the European Convention on Human Rights provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

In R(D) v SSHD [2003] 1 WLR 1315, Stanley Burnton J, as he then was, considered the position of discretionary life prisoners who had served the minimum period of detention and who had been transferred to mental hospital by order of the Secretary of State and made the subject of restrictions. In the state of the legislation at that time, such a discretionary life prisoner had no statutory right to require the Secretary of State to refer his case to the Parole Board. It was the Secretary of State’s established policy to make such referrals in all cases, but the Court held that since the Secretary of State was under no duty to do so, the requirements of Article 5(4) were not satisfied, and the statutory provisions as they then stood were declared to be incompatible with the Convention. It was as a response to this decision that the legislation was amended by the introduction of Section 74(5A) as set out above.

In paragraphs 31-34 of that judgment, Stanley Burnton J considered submissions as to the delay which might arise under the statutory scheme which requires successive and separate applications to two tribunals. However, the judge declined to conclude that the statutory scheme represented an intrinsic breach of Article 5(4) and the requirement for the “speedy” determination of an application. He emphasised in paragraph 32 that the circumstances of the individual case must be taken into account. In paragraph 34 he observed that:

“… it would not be difficult to arrange for the lawfulness of the Claimant’s continued detention under the 1983 Act and the penal legislation applicable to him [to be] determined by a single tribunal. Members of the Parole Board already include legal and psychiatric members of mental health review tribunals.”

The observations of the judge in paragraph 34 of D, were cited to him in the course of R(P) v Home Secretary [2003] EWHC 2953 (Admin). In the latter case the claimant sought to say that Article 5(4) in effect required that there should be a single judicial body exercising the powers of both the Tribunal and the Parole Board. In the course of his judgment, at paragraph 7, the learned judge qualified his remarks in D, by making it clear that he had made those observations “without having heard any argument or any evidence directed at the practicalities of doing so”. In the course of the hearing in P such evidence was presented, and is summarised in the judgment. The judge rejected the submission that the Convention required a single tribunal. In paragraph 34 of P he said this:

“In my judgment, Mr Bowen’s submission, if correct, results in an unnecessary, unreasonable and impractical interpretation of Article 5(4). It is evident that the Member States might sensibly create different and differently qualified “courts” to determine the lawfulness of detention under different heads of Article 5(1). The effect of Mr Bowen’s submissions would be to render it at least difficult for Member States to have the various grounds for detention considered by specialist courts. I do not think that the Convention should be given such an unreasonable interpretation. Provided there is no undue delay in the review of the lawfulness of detention, or other infringement of a Convention right, there is no reason to require that the same court (whether nominally one court or a panel that sits as more than one court) determine each head of detention.”

The judge went on to observe that it is only if breach of the Convention right to a speedy decision were an inevitable consequence of the system of separate hearings that incompatibility would arise. In considering delay the judge said:

“56.

… The investigations and procedures necessary for the second court must take into account the fact that there had been investigations and a decision by the first court. It will also be relevant that the period before the first court (in the present context, the mental health review tribunal) hearing provided an opportunity for the Home Secretary to make investigations and obtain evidence for the purpose of the second court hearing. That is not to say, however, that the Home Secretary (or the Parole Board) is necessarily required to do so. If the investigations and procedures for the second court cannot sensibly be carried out before the first court makes it’s decision (because, for example, it has been impossible to assess the detained person in appropriate conditions), a delay before the second court makes it’s decision to enable those investigations to be carried out will not preclude it’s decision from being “speedy”, even if the start date for the assessment of the relevant period is the date of the application to the first court.”

Before me, Mr Southey QC cited some of the remarks of Stanley Burnton J in paragraph 56 of P. He accepted that it was not open to him to argue that the “two courts” system constituted a breach of Article 5(4). However, perfectly understandably, he relied on the observations of Stanley Burnton J to the effect that the State’s obligation to provide a “speedy” remedy must be shown to be discharged despite the “two courts” arrangement, and that time spent in and around the first Tribunal proceedings must be taken into account when considering the time spent before the outcome of the overall process.

In emphasising the need for expedition, Mr Southey cited a number of authorities from rather different contexts. These included R(H) v Secretary of State for the Home Department [2004] 2 AC 253, De Wilde v Belgium (1971) 1 EHRR 373, R(Noorkoiv) v Secretary of State [2002] 1 WLR 3284 and R(Cooper) v Parole Board [2007] EWHC 1292 (Admin). In my judgment, this parade of authority really takes the matter no further. The obligation to provide speedy resolution is clear on the face of the Article and was fully stated by Stanley Burnton J.

As is clear from the sequence of fact outlined above, in the instant case an earlier hearing before the Parole Board is unlikely to have altered the outcome for the Claimant. She was transferred to Plas Coch on 4 July 2012. This was the destination which fulfilled the conditions for her conditional discharge set by the Tribunal. Mr Southey submitted that this fact was immaterial when considering the question of a breach of Article 5(4). He relied upon the decisions of Mooren v Germany (2010) 50 EHRR 23 and R(Sturnham) v Parole Board [2011] EWHC 938 (Admin). In the Mooren case Article 5(4) was held to have been violated by proceedings in which an Appeal Court had remitted an application for bail instead of dealing with the matter itself. The court also held there was no violation of Article 5(1), which Mr Southey argued implied that the detention was otherwise lawful and so therefore no prejudice had been caused to the Claimant by the violation. Similarly the delay in Sturnham was held to constitute a violation of Article 5(4) despite the fact that there was no prospect of earlier release.

I accept the theoretical proposition that a breach may be established where release has not been postponed. However, as with all other aspects of this consideration, such a decision will turn upon the facts. If the outcome of an earlier ruling would have been that more time was necessary before a final assessment could be made and a decision reached, then as Mr Justice Stanley Burnton emphasised in P, such a delay “will not preclude [the] decision from being “speedy””.

It is worth emphasising that there is little or no distinction between the approach outlined in the English authorities including P and the approach of the Strasbourg court. In Mooren v Germany the ECtHR said this in paragraph 106:

“In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings were conducted at more than one level of jurisdiction. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5(3) and 6(1) of the Convention – be determined in the light of the circumstances of each case, including the complexity of the proceedings, their conduct by the domestic authorities and by the applicant and what was at stake for the latter.”

The first criticism of the Claimant focuses on the situation immediately following the decision of the Tribunal. The Claimant argues that her case was left in a “period of limbo” with “no judicial monitoring of the steps that have taken (sic) to ensure that she can progress towards release”. Between 12 December 2011 and 29 March 2012 there was no judicial body that had any responsibility for her case. The fact that it was the Secretary of State who held responsibility for progress of the case was objectionable. This was analogous with the complaint in R(H) v Home Secretary [2004] 2 AC 253, where the House of Lords held that Article 5(4) required that a patient who was compulsorily detained in hospital should have access to a court with powers to decide whether his detention was unlawful and to secure compliance with conditions imposed on release. The situation was also inconsistent with the principle that a Tribunal must have full jurisdiction.

In considering this criticism, it is first necessary to consider the nature of the Tribunal’s decision. They did not order a simple discharge. The facts were complex, the current position was fluid and the eventual outcome uncertain. The order was for a conditional discharge once future arrangements and dispositions had been made. The Tribunal, of course, focussed only on the Claimant and on her mental disorder, not on the wider risks she represented to the community.

As I have said, a key point in Mr Southey’s reasoning is that in this case the Tribunal and the Parole Board were really deciding the same issue twice. He suggests that each was concerned only with the risks associated with the Claimant’s mental disorder. I reject this analysis, for two reasons. Firstly, there is a clear difference between the approach to be taken to an offender made the subject of a Hospital Order by the court and an offender transferred to hospital as in this case. Secondly, as the sentencing remarks of the judge in this case and the approach of the Parole Board made clear, in this case there was held to be risk associated both with the mental disorder and with wider considerations about the Claimant’s background and previous offending, going beyond her mental disorder. The two aspects of the case were of course interconnected, but it is wrong to characterise this specific case as one where all the risks were associated with the mental disorder from which the Claimant suffered.

It follows, in my judgment, that this was not a case where consideration of the risks arising from the Claimant’s mental disorder left little more to be addressed. It also follows that, whether this case fell to be decided by one Tribunal or two, a great deal more work was required to be done as at December 2011, before discharge from secure mental hospital could have been achieved.

Turning to the detailed criticisms of progress, the Claimant makes the specific criticism that the period between receipt of the Tribunal’s decision on 19 December 2011 and the instigation of a parole review on 9 January 2012 was undue delay. I do not accept this. In the context of a complex case requiring a good deal of further work, and without the prospect of immediate release if action was taken more speedily by a week or two weeks, this does not seem to me disproportionate, or close to it.

As I have already set out, once the Public Protection Casework Section received the case on 9 January 2012, they operated the wrong policy in setting a timetable for the case thereafter. A timetable should have been set to conform with chapter 15 of PSO4700. This should have meant a timetable aiming at a Parole Board oral hearing in around April 2012 rather than August 2012.

Had such a date been set in this case, and been followed through by a hearing at that time, it seems strongly likely that the Claimant would not by then have been transferred to Plas Coch. The likelihood is that the hearing initially fixed for April would have been adjourned to await scrutiny of the Claimant’s progress. Whether the timetable would have accelerated her date of transfer to Plas Coch, and if so by how much, must be speculative.

The Claimant complains understandably about the unexplained delay from early February to late March in the preparation of the Offender Manager’s report. Apart from the general explanation that this was due to sick leave we have no more detail. It does appear likely that a 13 week timetable set in conformity with the policy would have given added urgency to the preparation of this report. However, the fundamental point remains that a consideration by a Parole Board panel in April 2012 would have been likely to adjourn the case whilst progress was monitored. This, after all, was the direction of the single panel member on 4 April.

This period, until the dossier was with the Parole Board, gives rise to the complaint that no judicial body was in active control of the Claimant’s case and supervising progress. To my mind, in this case, this is a theoretical point rather than an argument of substance. Firstly, it was open to the Claimant to make direct application to the Parole Board at any time. Hence there was available to her the opportunity to invoke a judicial jurisdiction at any stage. This would not, in practice, have added anything. Secondly, from the point when the Tribunal’s decision reached the Ministry, it was always contemplated that the further judicial proceedings would follow and a timetable was set for that. Thirdly, it is almost universally the case that judicial bodies depend on others to progress a case. Finally, none of this is likely to have made any difference to the eventual outcome for the Claimant.

The Claimant argues from the end of March 2012 onwards there was “no monitoring of progress” by the Parole Board, and that the period was simply too long before the matter was determined. I have analysed in detail the sequence of events and will not repeat the analysis. There were multiple causes of short delays. Directions were not sent out by the Parole Board between 4 and 23 April 2012. The PPCS extended the target date for the Offender Manager’s report by a week. The Offender Manager delayed delivery of the fresh report between 3 May and 27 June, for which the only explanation given was “special leave for a bereavement”. Between 29 June and 8 August, the Claimant’s solicitor (CDMK) asked for time to seek instructions from her client. However, the critical fact is that it was only on 5 July that the Claimant had been moved to Plas Coch and on any sensible view of the case, whether from a consideration of the progress of the Claimant’s mental health or from any allied consideration of risk in the community, a period in Plas Coch with observation and assessment would have been necessary before the Claimant could possibly have achieved discharge. Thus, in reality, in relation to all of the time before the move to Plas Coch and thereafter, the time necessary for assessment of the Claimant’s progress, cannot be ascribed to delay by these Defendants. Even if everything had moved with alacrity, and even if the correct policy for timetable had been applied, the outcome would have been the same.

Once CDMK had indicated they had no further representations, the file was placed promptly before a single member of the Parole Board. There was some delay from 17 August to 5 September, but I do not regard that as unwarrantable in the context. It must have been clear to all parties that this case was complex and would take time for resolution.

The directions indicated that a psychiatrist’s report was necessary. The Second Defendant was prompt in pressing for this report. The period before delivery of Dr Gupta’s report on 19 November cannot be ascribed to the Second Defendant. Indeed, it seems to me fault cannot be ascribed to anyone. The change of locum psychiatrist was a circumstance beyond anyone’s control. It was appropriate to have an authoritative report from a psychiatrist who had a reasonable acquaintance with the Claimant in the context of Plas Coch. Dr Gupta’s recommendation was that he required three to four months to observe progress before a definitive assessment of her risk could be made. In my view that was a professional judgment which was bound to be respected by whichever Tribunal was seized of the case and has an important effect on whether the review is properly regarded as “speedy”. Indeed, as I have set out in paragraph 29 above it is very likely that had a report been prepared by Dr Gupta’s predecessor, Dr Mansour, a very similar view would have emerged.

The timetable indicated by Dr Gupta on 19 November had been to specify three to four months to observe the Claimant’s progress. The Second Defendant did not delay setting a hearing, and it was organised for 12 March as I have indicated. That was well within the three to four months indicated by Dr Gupta. The complexity and uncertainty of this case is illustrated during that final period by the fact that the Claimant absconded twice from Plas Coch. I have already analysed the outcome of the final hearing.

The claim for judicial review is dismissed as against both Defendants. There were unexplained delays at various stages along the way. There was a wrong application of policy by the First Defendant which might, in another case, have caused significant delay. A considerable part of the delay in this case derived from the actions of others, including the Claimant’s own solicitors. However, the essential timetable of the case was determined by the need to observe the Claimant’s progress once transferred to Plas Coch. The transfer itself was not delayed by any handling of the hearings before successive Tribunals. The period following transfer was set by the advice of appropriately qualified clinicians and it was advice which in my view was bound to be followed by either or both of the judicial bodies engaged in considering the Claimant’s case. This was a complex case which required careful consideration. Although it took a considerable time to be resolved, there was in my view no breach of the obligation on the part of the State to provide a “speedy” resolution.