Lee-Hirons v .Secretary of State for Justice - (27 Jul 2016)

Only exceptionally will law countenance a deprivation of liberty at direction of executive

Criminal

Appellant suffered protracted mental disorder, namely a personality disorder and a chronic paranoid delusional disorder and has a long history of admission to psychiatric hospitals. Appellant has 61 convictions for a variety of offences. In light of mental disorder, Court then made a “hospital order” pursuant to Section 37 of Mental Health Act 1983, by which it authorised his admission to and detention in a secure hospital and a “restriction order” under Act, which vested power to discharge him in Respondent (“the Minister”) or First-tier Tribunal (Health, Education and Social Care Chamber) (“Tribunal”). Appellant thereby became a “restricted patient” under Act, and was detained in medium-secure hospitals. In April 2012, Tribunal directed that, Appellant should be conditionally discharged from hospital and approved a plan that he should move to a registered care home subject to conditions. Minister issued a warrant for Appellant’s recall. Appellant challenged lawfulness of decision to recall him. Appellant appeals against order of Court of Appeal, whereby it dismissed his appeal against dismissal of his application for judicial review of Minister’s explanations to him.

Department of Health issued guidelines on recall of patients to hospital, set out a three-stage procedure for the communication of reasons. Legal sufficiency of Minister’s explanation provided to appellant at time of his recall (i.e. that it was because of his deteriorating mental health) satisfied first stage of the Policy. It also complied with the Minister’s common law duty to provide reasons. Article 5(2) ECHR, does not in this respect extend beyond the demands of the common law and, accordingly, there is no violation of that article. Minister’s explanation at that time was legally sufficient, and it is unnecessary to consider the effect of an insufficient explanation. There is no link, let alone a direct link, between, on one hand, Minister’s wrongful failure for 12 days to provide to Appellant an adequate explanation for his recall and, on other, the lawfulness of his detention. The failure did not delay reference of his case to First-tier Tribunal. Nor has Appellant suggested that it delayed institution of present proceedings. Even if it had created delay, unequivocal statement of Lord Mance and Lord Hughes in Kaiyam case about limited effects of a violation of Article 5(4) would appear to exclude relevance of delay to validity of detention itself. Court of Appeal was therefore right to conclude that, conceded breaches did not render the detention unlawful.

Appellant is not entitled to damages for breach of his common law right to receive an adequate explanation for his recall within time set out by the Policy. The breach does not amount to a tort and there is nothing to suggest that damages would have been available in an ordinary action against Minister. In relation to violation of Article 5(2) ECHR; Appellant has failed to establish that, effects of breach were sufficiently grave.

Relevant : R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344

Tags : RECALL DETENTION EXPLANATION