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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R A, R (on the application of) v Secretary of State for the Home Department [2002] EWHC 1618 (Admin) (30 July 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1618.html Cite as: [2002] EWHC 1618 (Admin), [2003] 1 WLR 330

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London WC2A 2LL
		30 July 2002

General

1. This case concerns the exercise of the Secretary of State's power to give or refuse his consent to leave of absence, often referred to as "community leave", under the Mental Health Act ("the Act"), section 17, when a deferred conditional discharge has been granted to a restricted patient by a Mental Health Review Tribunal ("the Tribunal").
2. On 15 November 1999 the Claimant was found not guilty by reason of insanity of kidnapping and assault occasioning actual bodily harm. He was diagnosed as suffering from a mental illness, that is, acute paranoid schizophrenia, the symptoms of which included paranoid delusions and olfactory and auditory hallucinations. An order was made under the Criminal Procedure (Insanity) Act 1964, section 5(2)(a) for his admission to hospital. By the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, section 5(1)(a) and Schedule 2, paragraph 2(1)(a), that order was to be treated for the purposes of the Mental Health Act 1983 as if the Claimant had been admitted in pursuance of a hospital order. A direction was made under Schedule 2, paragraph 2(1)(b), with the result that he was to be treated as if an order had been made under the Mental Health Act 1983, section 41, restricting his discharge without limit of time.

The statutory framework

3. Section 41(3) of the Act, as amended, sets out the special restrictions applicable to a patient in respect of whom a restriction order is in force:

"(a) … the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under … Part II or absolutely discharged under section 42 [Powers of the Secretary of State in respect of patients subject to restriction orders], 73 [Power of tribunals to discharge restricted patients] … below;

"(b) none of the provisions of Part II of this Act relating to after-care under supervision shall apply;

…

"(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely -

(i) power to grant leave of absence to the patient under section 17 above;

…

and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer.

"(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; …".

4. The Act provides for the discharge of restricted patients either by a Tribunal or by the Secretary of State. In describing the discharge provisions I shall refer only to those who have been suffering from mental illness.
5. The conditional discharge of a restricted patient must be directed by a Tribunal, on an application, if they are not satisfied (a) that the patient is either now suffering from mental illness or not from mental illness of a nature and degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment and (b) that it is necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment, but (c) that it is not appropriate for him to remain liable to be recalled to hospital for further treatment: section 73(2) as amended. (The amendment did not take effect until November 2001, but the Tribunal in fact applied the section as if the amendment had already taken place.)
6. By section 73(7):

"A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for the purpose have been made to their satisfaction…".

In these circumstances the direction will be made only after the arrangements have been made.

7. If a patient is conditionally discharged by a tribunal, the Secretary of State may subsequently impose conditions: section 73(4)(b). He may from time to time vary any condition imposed either by the tribunal or by him: section 73(5). The patient must comply with any conditions imposed by the tribunal or by the Secretary of State: section 73(4)(b).
8. The Secretary of State's power of discharge arises under section 42(2). He may, if he thinks fit, by warrant discharge a restricted patient either absolutely or subject to conditions. The Secretary of State is not guided by the Act about the matters he should take into account.
9. Section 73(8) reads:

"This section is without prejudice to section 42".

10. The Secretary of State may at any time recall a restricted patient who has been conditionally discharged, whether by the tribunal or by him: sections 42(3) and 73(4)(a).
11. Leave of absence from hospital is governed by section 17. The responsible medical officer ("RMO") may grant to any patient who is liable to be detained leave to be absent from the hospital. The leave may be subject to any conditions that the RMO considers necessary in the interests of the patient or for the protection of other persons: section 17(1). Leave may be granted either indefinitely or on specified occasions or for any specified period: section 17(2). The RMO may direct that the patient remain in custody (that is, in practice, escorted) during his absence: section 17(3). As I have mentioned, if the patient is a restricted patient, the power to grant leave is exercisable only with the consent of the Secretary of State: section 41(3)(c)(i).
12. Leave may be revoked by the RMO by notice in writing if it appears to him that "it is necessary to do so in the interests of the patient's health or safety or for the protection of other persons": section 17(4). If the patient fails to return at the expiration of any period of leave, he may be taken into custody and returned to the hospital: section 18(1)(b). The Secretary of State has the same power to recall as the RMO if the patient is a restricted patient: section 41(3)(c).
13. Thus the scheme of the Act is that if the Tribunal grant a deferred conditional discharge to a restricted patient, but leave of absence is necessary for visits to a hostel or for a trial period staying there, the consent of the Secretary of State is required for such leave.
14. Section 117 imposes duties on Health Authorities and local social services to provide after-care to those released from detention under the Act. The duty is not absolute; those concerned must use their best endeavours to fulfil conditions imposed by Tribunals: R. (K) v. Camden and Islington Health Authority [2002] QB 198 (C.A.).

The history

15. On 30 May 2001 the Tribunal decided to make an order conditionally discharging the Claimant under section 73 of the Act, but deferred their direction for his conditional discharge under section 73(7). The Claimant was at that time in the Shaftesbury Clinic at the Springfield Hospital. The RMO was Dr.Deji Oyebode.
16. The Tribunal decided that the Claimant was still suffering from the same mental illness. However, they continued:

"Since admission Mr. A has made very good progress, has responded well to his medication and treatment, currently displays no overt symptoms of his illness and is stable. He is fully compliant with medication and we accept that in view of the degree of insight which he now has he is likely to remain compliant if discharged. We are satisfied on balance that although Mr.A is suffering from mental illness, it is not of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment. There is no evidence of any self harm or of threatening or aggressive behaviour towards others.

"Mr.A has not yet been tested in the community with escorted or unescorted leave. We accept the RMO's [Responsible Medical Officer's] evidence, which was not disputed, that the risk or relapse is fairly high if he fails to take his medication. There is a history of illicit drug use while in hospital which had some associations with the symptoms of his illness. Recent monitoring has proved negative for illicit substances and there is no other evidence of current drug abuse. Mr.A told us that he now realises the danger to himself if he does not continue to abstain from taking illicit drugs. For all these reasons we are satisfied that it is appropriate for him to remain liable to be recalled to hospital for further treatment.

"The RMO's preference if Mr.A is to be discharged is for him to reside in a hostel where he can receive an appropriate level of support and supervision. No such accommodation is currently available although the Senior Social Worker indicated that options are being pursued".

17. The Tribunal agreed with the suggestion from both the Claimant's legal representatives and the RMO that the discharge should be deferred until appropriate accommodation was available and approved by the RMO. They said:

"We note that the Home Office has been requested to grant leave to Mr.A and we recommend that this is now given urgent consideration".

18. The conditions imposed were:

"1. To reside at such accommodation as may be approved by the RMO as providing an appropriate level of supervision and support.

2. To accept medical supervision including the taking of medication as may be prescribed and directed by the RMO.

3. To abide by the terms of a discharge plan as shall be directed by the RMO and Social Supervisor.

4. To accept monitoring for consumption of illicit drugs as shall be considered appropriate by the RMO and clinical team".

19. A suitable hostel, St.Martin of Tours House ("the hostel"), was identified. The Home Office agreed to escorted community leave. By letter dated 9 August 2001 the hostel told the hospital:

"I would like to confirm that our recommendations around a client subject to 37/41 status undertaking a staggered discharge would be that following at least three day leaves, two or three overnight stays would take place prior to the six week trial placement beginning".

The inference is that the hospital already knew that the hostel contemplated a six week trial period. It is to be noted that although the Claimant's solicitors were told about the trial period, the Home Office were not at that stage told.

20. The Defendant had been asked to consent to "further escorted community leave at RMO's direction, with a view to gaining unescorted community leave and overnight leave to his hostel, to continue his rehabilitation". By letter dated 14 August, the Defendant consented to

"Occasional escorted leave at the Responsible Medical Officer's discretion, with a report back after three months.

"The Secretary of State's consent is given on the understanding that the grant of leave involves no undue risk to the patient or to others. The local police should be contacted at once and this Department should be informed by letter if the patient fails to return to hospital from leave".

21. On 28 September the Defendant agreed on request to six unescorted leaves and overnight leave at the hostel. On 9 October he agreed to a further 12 unescorted leaves, with a request for a report after 8. The responses of the Home Office were prompt.
22. By letter dated 12 November the hospital reported favourably on the outcome of unescorted community day leave. They requested unescorted community leave at the RMO's discretion and unescorted overnight leave to stay at the hostel. The letter continued

"In addition I would like to request in advance that the possibility of a six week period of trial leave be considered. This would be planned to take place after initially having overnight leave at the hostel. It would be most appropriate for this period of six weeks trial leave to occur immediately prior to Mr.A being discharged. …"

23. The reply by Zoe Maclean on behalf of the Defendant was dated 5 December and contains the decision now attacked:

"Thank you for your letter of 12 November where you invited us to consider a six week period of trial for Mr.A to St.Martin's of Tour [sic] Hostel.

"Whilst we recognise that St.Martin's of Tour seems well suited to Mr.A's needs and have no wish to impede his rehabilitation, community leave is not appropriate to the statutory arrangements for restricted patients. The concept of trial leave in the community places discretion over the patient's continuing liberty in the hands of the RMO, and effectively removes it from the Home Secretary. Whilst the attractions of that situation to a competent care team are apparent, it is not our understanding of the purpose of the restriction order.

"However, we would be prepared to consider a proposal for Mr. A's conditional discharge once an appropriate care package is in place. If the hostel required, as appears to be the case, a period of assessment before finally making up its mind on Mr.A, that could properly be accomplished within the conditional discharge structure. If the placement was not a success than [sc. then] either he would be recalled if his mental state justified the use of the Home Secretary's power, or if the breakdown occurred for purely administrative reasons, he would need to be re-housed possibly by voluntary admission to hospital. I presume that, as RMO, you would have to take the decision to readmit him to hospital on the same basis if the placement failed during section 17 leave.

"If you do consider Mr.A suitable to be discharged from hospital at this time we will be happy to consider any such proposal you may wish to make".

24. The hospital then on 10 December wrote to the hostel in response to their letter of 9 August. The hospital said that the multi-disciplinary team was happy to discharge the Claimant directly to the hostel, but that if that was not possible, there would be problems in meeting conditions stipulated by the Home Office.
25. The Claimant's solicitors wrote to the Chairman of the Tribunal on 11 December, complaining that the Home Office had agreed "rather slowly" to the necessary leave for assessment at the hostel, but, more importantly, setting out the Home Office's position. The Tribunal Chairman commented, through the Office of the Regional Chairman, on 10 January 2002 that the Home Office proposal was not in the Tribunal's decision the right way forward. The Tribunal did not regard it appropriate to direct conditional discharge without a permanent place at the hostel.
26. Meanwhile by letter dated 18 December written by Declan Henry the hostel reiterated their wish for a six-week trial placement, but indicated a preparedness to break the period into two-week or three-week blocks. On 14 January 2002 the Claimant's solicitors wrote to the Defendant, enclosing a copy of the letter of 18 December. They asked the Defendant to grant permission for the six-week assessment period, by implication accepting that the period could be broken up in the way suggested by the hostel. They indicated that if permission was not granted the Defendant's refusal would be challenged.
27. It is said on the Defendant's behalf that the Defendant did not realise until 14 January that the hostel actually required the six week period of assessment. That is unrealistic. The letter of 5 December assumed that there was such a requirement. In any event the Home Office must have experience of such requirements.
28. The reply dated 23 January by Nigel Shackleford on behalf of the Defendant included the following:

"I should like to make it clear that we are concerned to enable Mr.A's discharge to proceed in a way which respects his rights and the need to ensure the protection of the public. That was the basis of Ms Maclean's proposal that the RMO put to the Home Secretary a proposal for conditional discharge, which would achieve that effect. That would enable Mr.A to have whatever trial period the managers of St.Martin of Tours hostel found appropriate. In the event that the hostel concluded he was unsuitable, he could be recalled to hospital if the circumstances of his rejection warranted it. If his rejection was for administrative reasons which did not justify recall, he could be readmitted voluntarily or on a civil section as appropriate. This solution seems to me to meet all eventualities.

"I note your suggestion that the Home Office interpretation of the 1983 Act is idiosyncratic. The Secretary of State's view is that Part III of the Act imposes on him certain obligations in respect of conditionally discharged restricted patients; particularly through sections 42, 73 and 75. He is enabled to perform those functions by virtue of supervision arrangements which depend on conditions made under section 73. The protection of the public is not served by ignoring those arrangements in favour of the use of section 17 leave, which is appropriate to the testing of patients not subject to a restriction order.

"I believe that the best way out of this impasse is that proposed in Ms Maclean's letter. However, if Dr.McPhail cannot recommend to the Home Secretary that Mr.A's discharge be achieved by that route, and if the tribunal is unable to implement its discharge decision, then I propose that the hostel seek a compromise which would meet both their requirements and the responsibilities of the Secretary of State. I note that Declan Henry's letter of 18 December that they are indeed helpfully prepared to compromise, although in my opinion his proposal there would still involve Mr.A being unsupervised in the community for too long to meet the requirements of the restriction order and the tribunal's finding under section 73(2)".

29. The Claim Form was issued and served on 1 February. Collins J. gave leave on 7 February.
30. On 11 February Pam Lutterloch on behalf of the Defendant wrote to Dr.Oyebode at the hospital:

"Following our recent telephone conversation, I am writing to set out the agreed details of the overnight leaves that Mr.A may have to St.Martin of Tours hostel.

"We agreed that Mr.A could have two consecutive overnight leaves to the hostel on 14/15 February. He would then have a further two consecutive overnights on 21/22 February. Subject to all being well, he would then commence three blocks of two week overnight leaves. These will be from 25 February - 10 March, 18 - 31 March and 8 - 21 April inclusive. He will return to the hospital in between these times. During the final block of leave, you intend to consult the Tribunal members for confirmation that they are content to formally conditionally discharge Mr.A.

"I would be grateful if you could let me have a report on how the leaves have gone at the end of each period, and if you could let either me, or Nigel Battson … know immediately if there are any problems".

31. The statement of Nigel Shackleford, filed on behalf of the Defendant, states (paragraph 3) that following the original decision of 5 December to refuse leave for a continuous period of six weeks, the Mental Health Unit of the Home Office entered into negotiations with the Claimant's RMO, Dr.Oyebode, and it was agreed that the Claimant would be granted section 17 leave at the hostel. This is an incomplete account of events. No details of the negotiations are given. In fact the letter of 5 December appeared to indicate that leave was in principle not appropriate for a restricted patient. It was the Claimant's solicitors who brought to the Defendant's attention the hostel's suggested alternatives. The letter of 23 January did not accept either of those alternatives. Although that letter did suggest compromise, I am doubtful whether any negotiations took place until shortly before 11 February. I consider that they probably took place only under the spur of these proceedings.
32. However, the Claimant went to the hostel in accordance with the agreed plan. His trial leave was successful and a full time place was offered by the hostel. On 26 April 2002 the Tribunal directed his conditional discharge. He was thus released from detention. There was a very short period of confusion and delay just before 26 April, but it is not in my view material.

The issues

33. In the grounds it was contended that the Defendant's decision in the letter of 5 December to refuse consent to the six-week period of trial leave was unlawful. Secondly, it was contended that the proposed alternative namely the grant of conditional discharge under section 42 was unlawful. The Claimant sought an order quashing the decision. He sought in the alternative a declaration that the decision was unlawful and/or was an unlawful act for the purposes of the Human Rights Act 1998, section 6. He sought a declaration under section 4 of the 1998 Act that the Mental Health Act 1983 is incompatible with the Claimant's rights under article 5.1 of the European Convention on Human Rights. He sought further or other relief.
34. In his skeleton argument Mr.Bowen, Counsel for the Claimant, abandoned the application to quash the decision, since leave of absence had now been granted. The declarations continue to be sought, article 5.4 being added to article 5.1. As an alternative to a declaration of incompatibility the Claimant now seeks a declaration having the effect that the Mental Health Act 1983, particularly section 17 (read with section 41(3)), be interpreted in such a way that it does not conflict with articles 5.1 and 5.4. The Claimant also seeks compensation for any breach of his rights under article 5.
35. Mr.Kovats, Counsel for the Defendant, accepted that the remedies so far set out are available to be argued by the Claimant. However, Mr.Bowen also contended that in the witness statement of Nigel Shackleford dated 5 December 2001 can be found a policy of the Secretary of State that should be judicially reviewed. He sought to amend section 3 of the Claim Form. Mr.Kovats disputed that any policy can be discerned in the statement. After hearing argument I granted leave to amend to permit judicial review of:

"The Home Secretary's policy in respect of the grant of consent to section 17 leave in circumstances where (a) a conditional discharge has been ordered, but deferred pending the making of suitable arrangements; and (b) leave of absence is necessary to ensure the Claimant's discharge within a reasonable period of time".

36. In giving leave I noted that the Claimant's submission is that the policy is not to give consent to the grant of leave of absence to restricted patients granted deferred conditional discharge other than in exceptional circumstances. I noted that the D disputes that such a policy exists. I said that if I was not satisfied that such a policy exists, I should not grant relief. I granted leave on the basis that, as I mentioned above, the Claimant now seeks a declaration as an alternative to the declaration of incompatibility.

The scheme of the Act and the policy of the Secretary of State

37. The statement in the letter of 5 December 2001 to the effect that "community trial leave is not appropriate to the statutory arrangements for restricted patients" is clearly incorrect, even if the writer intended to refer only to periods staying overnight. Section 41(3) of the Act plainly provides for leave for such patients, but with the Secretary of State's consent. Mr.Kovats accepts that. And Mr.Bowen on behalf of the Claimant does not suggest that the sentence in fact reflects the Defendant's policy.
38. In evidence filed on behalf of the Defendant, Mr.Nigel Shackleford, who wrote the letter of 23 January, explains the reasons for the Defendant's preference for a conditional discharge by the Secretary of State as the basis for any overnight stays at the hostel. He describes the non-statutory regime that has been established for conditionally discharged patients. They are supervised in the community by both psychiatric and social work supervisors, to whom detailed and careful guidance has been issued, to which I have been referred. Supervisors are required to be aware of any changed risk of dangerous behaviour, with a view to reporting that to the Secretary of State. An officer of the Home Office Mental Health Unit is available on a 24-hour basis. The Secretary of State can not only impose conditions under section 42(2), but vary conditions under section 73(5). He has a power of recall under section 42(3). Mr.Shackleford states that the scheme works well.
39. Mr.Shackleford contends that the Secretary of State has no power to attach conditions to leave under section 17. He states that the effect of consenting to section 17 leave is effectively to delegate to the RMO the responsibility for the decision on the Claimant remaining in the community. The Secretary of State would have no power to require comprehensive supervision of the patient and hence would not be in a position to exercise his power of recall. In practice leave under section 17 does not work well. It is pointed out that although the letter of 11 February requested a report at the end of each period, no such reports were received.
40. It is submitted on behalf of the Secretary of State that his approach to giving consent under section 17 is flexible. However, Mr.Bowen submits that a more restrictive policy can be found in Mr.Shackleford's statement. He relies on the following passages (my underlining):

"In any event, the Secretary of State does not have a policy of refusing all such requests for s17 leave to enable effect to be given to deferred orders by the tribunal. He recognises that a balance may need to be struck on occasion to enable the order of the tribunal to be effected. In the Claimant's case following the original decision to refuse leave, the Secretary of State signalled his willingness to make exceptional arrangements in a letter dated 23 January 2002 from myself to the claimant's solicitor to ensure that the order of the tribunal could be given effect. In the event that the tribunal had been unable to order discharge on the basis of the offer of a hostel place, and the responsible medical officer was consequently unable to make a conditional discharge proposal to him which would enable the hostel to effect its assessment procedure, the Secretary of State was ready to negotiate an exceptional arrangement for the Claimant which would enable him to co-operate with the care team for periods of leave shorter than the six weeks sought…".

41. In my view the submission that conditions cannot be attached to his consent to a grant of leave under section 17 is incorrect. It is true that neither section 17 nor section 41(3) provides in terms for such conditions to the consent. However, section 17 enables conditions to be imposed by the RMO on the patient. I can see no reason why the Secretary of State cannot in law decline to give consent unless suitable conditions are imposed. He can obviously refuse consent to leave for a particular period. And since the Secretary of State has a power of recall under section 41(3)(c), there is every reason why he should be able to insist upon conditions that have the effect of providing the necessary information to him. The power to recall would then be no less effective than under section 42(2). The suggestions in the letter of 23 January 2002 of voluntary readmission or a civil section are not likely to be effective.
42. Mr.Kovats points out that although conditions can be imposed on the patient under section 42(2) (and, if I am correct, before giving consent to the granting of leave), it is an open question whether conditions - such as the provision of reports - can be imposed on the RMO. However, as a matter of law any such problem would arise equally under both procedures.
43. In fact the Secretary of State purported to impose what looks like a condition in his letters of 14 August 2001. The letter of 11 February merely requested reports, without purporting to make the supply of reports a condition.
44. The scheme for supervisors under a conditional discharge is non-statutory. No reason has been advanced why such a scheme should not be extended to overnight leave granted after a decision in principle to direct conditional discharge has been taken.
45. There is a further argument against using conditional discharge under section 42(2) in circumstances such as these. The Tribunal has reached a considered decision after a hearing. It has now been held that despite the absence of any statutory provision, a case may be referred back to a Tribunal: R. (IH) v. Secretary of State for the Home Department and Secretary of State for Health [2002] EWCA Civ 646. I shall return to that case later. In a sense a reference back to the Tribunal is what occurred here by letter.
46. Two decisions emphasise the importance of carrying out a Tribunal's decision: R. (Von Brandenburg) v. East London and the City Mental Health NHS Trust [2002] QB 235 (C.A.) and R. (H) v. Ashworth Hospital Authority and others [2002] EWCA Civ 923. However, those cases refer to the actions of professionals, not to the actions of the Secretary of State. In R. v. Secretary of State for the Home Department [1998] 1 WLR 1737 Lightman J. held that the Secretary of State was not obliged to implement a recommendation of a Tribunal, but was entitled and indeed bound if necessary to seek further advice. However, there is a crucial distinction to be drawn between a recommendation and a decision by the Tribunal under its statutory powers.
47. Unless there is some development that the Tribunal is unable to deal with, the use of the power of conditional discharge by the Secretary of State, when that essential decision has already been taken by the Tribunal, appears to me inappropriate. I bear in mind section 73(8) to the effect that section 73 is without prejudice to section 42. However, I do not think the statutory scheme is designed to permit the Secretary of State simply to substitute his own conditional discharge for that of the Tribunal, in the absence of some good reason.
48. I conclude that the statutory scheme distributes powers between the Tribunal and the Secretary of State. In a case such as the present, the scheme is that once a conditional discharge is granted by the Tribunal, leave, with the consent of the Secretary of State, is the method designed by the Act to provide for overnight stays in a hostel.
49. It is clear from the statement of Mr.Shackleford, quite apart from what happened in this case, that the Secretary of State has a preference for using section 42. The passage quoted above appears to me to be evidence of a policy, or at least of a settled practice, not to give consent to leave under section 17 for overnight stays to restricted patients granted deferred conditional discharge other than in exceptional circumstances. That policy or practice is in my view mistaken. The giving of leave under section 17 should be the normal method under the Act.

Article 5

50. Article 5, so far as it is relevant, reads:

"RIGHT TO LIBERTY AND SECURITY

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(e) the lawful detention … of persons of unsound mind …;

…

…

"4. 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".

51. Mr.Bowen cites Johnson v. UK (1997) 27 EHRR 296 and R. (on the application of IH) v. Secretary of State for the Home Department and Secretary of State for Health [2002] EWCA Civ 646.
52. In IH the Court of Appeal said (at paragraph 29):

"29. The leading Strasbourg decision on Article 5 is Winterwerp v. The Netherlands [1979] 2 EHRR 387. That case established the following principles:

i) A mental patient cannot lawfully be detained unless he has been reliably shown to be of unsound mind.

ii) The nature of the mental disorder must be of a kind or degree to warrant compulsory confinement.

iii) Continued detention will only be justified if the disorder persists.

iv) A person detained must have periodic access to an authority with the characteristics of a court in order to obtain a review of the lawfulness of his detention.

"30. In Johnson … the Court held that where an authority found that the mental disorder which justified a patient's detention no longer persisted, the patient was not entitled to immediate and unconditional release. The authority was entitled to make the release subject to conditions designed to enable the patient's progress after release to be monitored. The imposition of conditions could justify deferring the discharge, but safeguards had to be in place to ensure that the deferral was consonant with the purpose of Article 5.1 and not unreasonably delayed."

53. In IH the court was considering a restricted patient who was conditionally discharged by a Tribunal. Delay was caused by the inability of the Health Authority to find a psychiatrist prepared to supervise the Claimant in the community, as one of the conditions required. The Court said:

"87. We are not aware of any Strasbourg jurisprudence that indicates that a Member State owes a duty under the Convention to put in place facilities for the treatment in the community of those suffering from mental disorders so as to render it unnecessary to detain them in hospital. In these circumstances we think that it must be a matter for the individual Member States to decide what resources to devote to the provision of mental care in the community. Available resources may make it possible for essential treatment to be provided to a mental patient in the community in circumstances which will not place in jeopardy either his own health or safety or the safety of others. In that event it will be a breach of Article 5.1 to detain the patient in hospital. If the law of a Member State requires the authorities of that state to provide facilities in the community so as to obviate the need to detain in hospital those with mental disorders, a breach of domestic law, which results in the detention of a mental patient in hospital, is likely also to constitute a violation of Article 5.1. This is because under Article 5.1(e) detention of a person of unsound mind can only be justified if it is lawful according to the law of the Member State concerned".

54. Where a decision is made to direct a conditional discharge, but defer the direction to enable arrangements to be made for providing psychiatric treatment in the community, the Court said that

"96. … The Health Authority subject to the s.117 duty will then be bound to use its best endeavours to put in place the necessary aftercare. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours, the Health Authority is unable to provide the necessary services, the Tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment, it should record that decision".

55. It was in these circumstances that the court held that a Tribunal should meet after an appropriate interval to monitor progress in making the necessary arrangements. The Tribunal may then make further orders. However, it will not normally be appropriate for a Tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements.
56. Mr.Bowen's first submission is that the Mental Health Act 1983 is incompatible with Article 5. There are in my view two serious objections to the granting of a declaration to that effect. First, no specific provision has been identified by Mr.Bowen as being incompatible, although possibly section 41(3)(c)(i) might be a candidate. Secondly - and this is in a sense the other side of the same coin - he is really complaining of an absence of any power in the Tribunal to grant leave under section 17. Complaints of legislative omission are outside the scope of the 1998 Act: section 6(6).
57. In any event, it is in my view clearly possible to read "read and give effect to" (as the Human Rights Act 1998, section 3(1) requires) the provisions of section 41(3)(c)(i) in a way that renders the relevant provisions compatible. It would even, for example, be possible, as Mr.Bowen submits, to read the provisions as requiring that the Secretary of State must exercise his power to consent in accordance with any recommendations of a Tribunal, including a recommendation that consent be given to any requests made by the RMO.
58. I do not, however, in fact consider it necessary to read the provisions in that strict way. In my view it is possible to operate the provisions of sections 17 and 41(3)(c)(i), without causing unreasonable delay to the implementation of a Tribunal's decision. It is open to a Tribunal to make more specific recommendations than were made here for the granting of leave. If necessary the Tribunal can be asked to make further recommendations. The Mental Health Unit clearly has a system of responding promptly to requests by the RMO, as the responses on 14 August, 28 September and 9 October demonstrate.
59. In my judgment, the Secretary of State has a duty to respond with reasonable promptness to recommendations by a Tribunal and to requests by a RMO; not to obstruct or cause unreasonable delay to the implementation of a Tribunal's decision; and to follow recommendations made by a Tribunal in the absence of sound reasons or new circumstances.
60. While clearly the requirement of consent, even if this duty is carried out, may cause some delay, it does not follow that such delay will be unreasonable. Restricted patients who are granted conditional discharges are by definition those who have in the past given cause for particular concern and for whom it is appropriate that they should remain liable to recall. Although a case may be referred back to a Tribunal, such a Tribunal is not well suited to the constant monitoring of a programme of leave. Yet in my view it is not unreasonable or contrary to Article 5 or the Strasbourg case law for some authority other than the RMO to have a role in such monitoring.

The present case

61. In his statement in these proceedings Dr.Oyebode says that the clinical team envisaged that the discharge process would take two or three months from the time that suitable accommodation was identified, but that they had to comply with Home Office guidelines. However, the hostel's proposals for a staggered discharge, as set out in their letter of 9 August, could not sensibly have been completed in two months. Three months appears to be a minimum. Very likely the actual period would have been more. The evidence does not reveal precisely when the hostel was identified, but the inference is that it was shortly before 9 August. Thus even if the Home Office had not been involved at all, discharge could not have taken place before early November.
62. I do not consider that there was any unreasonable delay up to 5 December. Although the Home Office asked for a report back in three months in their letter of 14 August, it did not in fact insist on that before giving further consents. As I have said, the responses to requests by the RMO were reasonably prompt.
63. It must be noted that the letter of 12 November requested "in advance" that the possibility of a six-week period of trial leave be considered. That was to follow the Claimant initially having overnight leave. The letter enclosed "a copy of the proposed dates for him to attend the hostel at St.Martin's of Tour (sic)". I asked to see that copy, but neither party could produce it.
64. The requirement that the six-week period be broken up into blocks of two weeks was not an unreasonable decision. Even if one assumes that the six-week period could have commenced on about 5 December, rather than on 14 February, when the first two-week period began, the delay cannot have been more than 10 weeks at the outside. In fact, it is not possible to say what the period of delay actually was, because the dates proposed in the letter of 12 November are not available. And it does not appear that the six-week period was likely to have begun as early as 5 December.
65. I accept that the refusal in the letter of 5 December, expressing as it did, opposition in principle to community leave of the kind suggested for a restricted patient, caused delay. And the letter of 23 January caused further delay. My conclusion on the available evidence is that the commencement of the first two-week period was actually delayed by about six weeks.

Whether the Defendant is liable for unlawful detention

66. It is submitted on behalf of the Defendant that even if his actions caused a delay in the release of the Claimant, he is not liable to pay compensation because he was not detaining the Claimant. Mr.Kovats relied on authorities.
67. In Ashingdane v. UK (1985) 7 EHRR 528, the applicant's transfer from a secure hospital to a local psychiatric hospital was delayed. His complaint was that his continued detention in the secure hospital was unlawful. The European Court of Human Rights held that although the conditions in the two hospitals differed, that did not render the detention unlawful. Article 5 is not concerned with the conditions under which a person is detained. That conclusion was reached, despite the fact that the applicant's release from hospital was delayed.
68. In R. (on the application of Burgess) v. Secretary of State for the Home Department (CO/4888/1999), the Divisional Court was faced with a challenge to the Secretary of State's decision not to accept the advice of the Parole Board that the applicant should be reclassified from Category C to Category D. The decision would have the effect of delaying release. Referring to Ashingdane, the court held that Article 5 was not concerned with the classification, even if the decision had an impact of the period of detention.
69. Mr.Bowen seeks to distinguish those authorities, because in the present case a decision in principle had been taken that the Claimant should be discharged, albeit conditionally. I accept the distinction. It is one thing to take a decision that tends to postpone a later decision to release. It is another thing to take a decision that delays release after a decision in principle to release has been taken.
70. In IH Bell J. held that on the facts the Claimant had been held 'in limbo' for so long that his rights under Articles 5.1 and 5.4 were violated. In that case the claim for damages was abandoned, because by section 6(2) of the 1998 Act, section 6(1) is disapplied if the relevant authority could not have acted differently, as a result of primary legislation. It was conceded that that would save any of the relevant public authorities directly or indirectly responsible for the Claimant's continued detention from a claim under section 7(1). The Court of Appeal agreed that that Claimant's prolonged detention was in violation of Article 5.1.
71. In the present case the Secretary of State was not precluded from acting differently by the primary legislation. The detention of the Claimant was not prolonged, nor was he 'in limbo' for a long period. However, his release was delayed by about six weeks. That amount of delay, coming after delay that can be justified, was unreasonable, in the sense that there was no good reason for it. His rights under Article 5.1 and 5.4 were violated. That was in fact caused by the Secretary of State.
72. However, it was pointed out by Mr.Kovats that in Johnson the compensation was awarded by the European Court of Human Rights against the United Kingdom. He submitted that in the present case the detaining authority was not the Secretary of State. If any damages were to be payable, he suggested that they would be payable by the Tribunal.
73. His argument derives support from R. (K) v. Camden and Islington Health Authority [2002] QB 198. Buxton LJ, with whom Sedley LJ agreed, said (at paragraph 49):

"If, however, the complaint is to be articulated in domestic law terms, it cannot be directed at "the state" at large, but rather at the organ or organs of the state, the public authorities, that are responsible for the breach. Being a complaint about detention, it would seem that the complaint would have to be directed at the organ of the state actually responsible for the appellant's detention: that is to say, the authority responsible for Chase Farm hospital. Such an action would not depend on any actual fault on the part of that authority, but upon the fact that, implementing the arrangements made by the state, that authority Had detained the applicant when by reason of article 5.4 she should not have been detained."

74. In the light of this authority responsibility would lie not with the Tribunal but with the authority responsible for the hospital. However, the responsibility does not lie with the Secretary of State, although he caused the delay that was unreasonable. It seems to follow that damages are not payable by the Secretary of State.
75. I have been supplied by both Counsel with the decision of Stanley Burnton J. in R. (KB and others) v. Mental Health Review Tribunal and Secretary of State for Health [2002] EWHC 639 (Admin). He was considering the duty under article 5.4 of the State to ensure speedy hearings for detained patients' applications. He pointed out (at paragraph 112) that it is irrelevant to the question whether there has been an infringement of Article 5.4 which government department or other public authority was at fault. However, he agreed to make clear in his judgment the respective responsibilities of central government and the tribunals themselves for the failure to provide speedy hearings. He agreed to do so. I have also made it clear who caused the delay resulting in breach of Article 5. However, in the light of K, it does not follow that the Secretary of State is responsible for compensating the Claimant.

Orders

76. For the reasons I have given I refuse a declaration of incompatibility. I have set out my conclusions on the way in which sections 17 and 41(3) should be applied by the Secretary of State. I have held that the Claimant was unlawfully detained. No order to quash the decision of 5 December 2001 is required. Subject to discussion with Counsel, I am disinclined to grant any declarations.
77. It was agreed at the hearing that I should adjourn any question of damages until the decision of this Court in R. (KB) v. Mental Health Review Tribunal [2002] EWCH Admin 639 (CO/2363). However, for the reasons I have given I hold that damages are not recoverable from the Secretary of State.
- - - - - - - - - - - - -

MR JUSTICE CRANE: I am handing down the judgment of which counsel already have copies. Can I thank both counsel for the corrections that were submitted, all of which I think I have incorporated. PRIVATE 

MR BOWEN: My Lord, can I apologise. There are two which I did not pick up, not did my learned friend, for which I have my solicitors to thank. It is paragraph 53. The extract on page 14 of the revised transcript, the sixth line, should read "it will not be a breach" rather than "it will be". Paragraph 73 on page 17, the quotation at the third line at the end of that paragraph should read "authority had detained".

MR JUSTICE CRANE: I do not know how Hassid has come in. I should think it is probably an auto correct from another case, my having misspelled the word, or something complicated like that. But anyway, thank you.

MR BOWEN: Can I deal with two matters, my Lord. Firstly, your Lordship made an anonymity order at the outset of these proceedings. My learned friend has no objection to that order continuing, and we would ask that that order do continue, that he be referred to simply by its initials RA.

MR JUSTICE CRANE: Yes. I take it you do not object to that, Mr Kovats?

MR KOVATS: No, I do not.

MR JUSTICE CRANE: Very well.

MR BOWEN: Does my Lord have a copy of the draft order sent around yesterday?

MR JUSTICE CRANE: Yes, I do. Before we come to that, and it affects what is going to happen, in the case which Mr Justice Scott Baker was deciding about damages, where has that got to?

MR BOWEN: There was a directions hearing last Friday. In fact one of my cases has now been joined to that. It is currently listed for hearing in October.

MR JUSTICE CRANE: I said that matters of damages would be adjourned; that was the plan. I take your point in the submissions you make about your asking to join other people. Can I tell you my initial inclination: that is to say that, whatever orders or declarations I make on the principles, questions of damages (including questions of joinder of other people) should be left until any adjourned hearing because there is the question -- I have reached a finding of fact, as you know, about the length of time release was delayed. You have your Johnson point that, as a matter of Convention law, human rights law, in fact it should be the whole period. There are the questions under, I think, section 8 about whether other remedies are sufficient. I do not know to what extent those kinds of matters are going to be affected by the decision in the other case. They all seem to me to be possibly inter-related and, particularly bearing in mind that the question of damages cannot be said to be urgent, it would probably be better to deal with them as a package once the outcome of that other case was known.

MR BOWEN: My Lord, certainly I have no objection to the resolution of those issues being undertaken after judgment is given in the case of KB. But there are problems if questions of joinder are left for too long, bearing in mind the one-year time limit for human rights claims. It might be argued by any prospective defendants that, if they are not joined in two months from now, they will be outside the time limit.

MR JUSTICE CRANE: When would the year run from?

MR BOWEN: It would run from, let me see, December 2001. I suppose, going back a year back from now, if I was right on my Johnson point, I would not get even an order for a period ---

MR JUSTICE CRANE: Can we just look at the article? What section am I looking for?

MR BOWEN: Section 7.

MR JUSTICE CRANE: There is a copy of Archbold here. What section am I looking for?

MR BOWEN: The Human Rights Act, my Lord? Section 7.

MR JUSTICE CRANE: Is there a White Book anywhere? It is in Volume 2 at 8/6/7.

"It can be within such longer period as the court or tribunal considers equitable, having regard to all the circumstances."

Subsection (5) is the one year with the right of the court to extend it. You may or may not be right to say that you are already in difficulties because May 2001 is crucial. Let us assume for the moment you are. If the court decides today to adjourn it for a limited period for the reasons we have discussed, you would have a very strong argument under (5)(b) that any period of adjournment was something that the court should rectify, as it were.

MR BOWEN: It would be open to your Lordship to do either two things which would protect my client's position: either to join the parties now, and in my respectful submission that would be the most appropriate course of action because it puts them on notice now of the arguments that are going to be raised, and we can put steps in place before ---

MR JUSTICE CRANE: It means that costs are expended possibly by them when it has not yet been decided whether they should be joined. An alternative would be for me to indicate why I am adjourning the matter, invite those instructing you to write letters before action to those concerned, explaining what the situation is, and that would place you in at least a very strong position in relation to any further lapse of time.

MR BOWEN: My Lord, I recognise that ---

MR JUSTICE CRANE: I am by no means sure that it would be desirable to hear applications for joinder at this stage. Mr Kovats has not submitted anything and, quite apart from the fact that the decision of Mr Justice Scott Baker may affect what the court does in relation to damages, I must say I would want to consider very carefully the implications for joining other people. After all the whole question of suing somebody else arises from that passage in the authority of the Court of Appeal. I have not thought through the implications of joining other people and frankly I would want more consideration than it would be possible to give today, certainly - quite apart from the question of waiting for the other case.

MR BOWEN: My Lord, I see that difficulty. But my difficulty is this. We did not know that the Secretary of State was going to run this argument until the day of the hearing itself. It did not appear in his defence or in the skeleton argument.

MR JUSTICE CRANE: But he has Court of Appeal authority.

MR BOWEN: I recognise that. It was not part of his case. If it had been part of his case we could have made the appropriate application before your Lordship heard the case itself. We are now in a situation, in the light of the point being taken in your Lordship's ruling, that Mr A has had his Convention rights violated and he is left without a remedy. It would be quite wrong, in my respectful submission, that he loses out because of probably time limits. I recognise what your Lordship says, that I have a strong argument ---

MR JUSTICE CRANE: I shall be dealing with the matter. You are going to have to trust me to apply the test of what is equitable in the light of what has happened. I do not think it would be sensible not to reserve it to myself because this is, as it were, ancillary to the main action here. I do not think it is possibly something I can hand over to somebody else.

MR BOWEN: My Lord, on that basis then I am perfectly content to adopt your Lordship's suggestion.

MR JUSTICE CRANE: In the light of that - I have not of course heard Mr Kovats yet - do you invite me to make any orders today other than handing down the judgment and adjourning the matter?

MR BOWEN: My Lord, only to extend the period for applying for leave to appeal to the Court of Appeal until after the final resolution of these matters in this court.

MR JUSTICE CRANE: Is that strictly necessary?

MR BOWEN: It is belt and braces, my Lord. I would gain comfort by an order to that effect. It will not harm him.

MR JUSTICE CRANE: In those circumstances let me see what Mr Kovats says.

MR BOWEN: And of course my question of costs to date that we seek against the Secretary of State.

MR JUSTICE CRANE: Let us come to costs in a moment. Mr Kovats, what do you say about the various loose ends?

MR KOVATS: My Lord, first can I make clear that I am here on behalf of the Secretary of State and not on behalf of the Attorney-General or on behalf of the hospital. The second point is that in my submission paragraph 77 of your Lordship's judgment is clear: damages are not recoverable from the Secretary of State. In my submission it follows from that that there is no further hearing to come unless there is to be joinder. Your Lordship has effectively ruled on liability; quantum does not arise as regards the Secretary of State.

With respect to the issue of joinder, in my submission it would not be right for your Lordship to join either the Attorney or the hospital without giving them an opportunity ---

MR JUSTICE CRANE: Of course not, no.

MR KOVATS: I will not develop that further. On that basis, my Lord, the Secretary of State would be quite content for there to be a further hearing at which the Attorney and the hospital could make submissions as to whether they should be joined. But as far as the Secretary of State is concerned, in my submission this is the end of the road unless there is an appeal to the Court of Appeal.

MR JUSTICE CRANE: There might be and I am not going to deal with that at this moment. Let us just think it through. In the light of the forthcoming judgment---

MR KOVATS: Mr Justice Scott Baker's?

MR JUSTICE CRANE: Yes. In effect Mr Bowen has flagged up his intention to apply for joinder. He has only done it in a form of a note, as it were. It seems to me that as a matter of formalities, leaving aside any letters before action, the next thing is for a formal application to be made, which I would hear, in the light of the judgment of Mr Justice Scott Baker, which may throw light on all these matters. I follow your point that, in the light of my judgment, there are no further matters which the Secretary of State needs to deal with except, I suppose, the question of what order I make in relation to the Secretary of State.

For example, Mr Bowen may well say, quite apart from the fact that there are no damages payable by the Secretary of State, nevertheless some kind of declaration ought to be granted. One of the matters the court has to consider under section 8, I think it is, is whether any other remedy is sufficient (I paraphrase) where damages are claimed.

Just thinking it through it seems to me that, on any application to join, at least at that stage it would be helpful to have the Secretary of State represented just in order to see where we are going from here. It may become apparent then that the Secretary of State can pass out of the action. But it seems to me that, unless I risk dealing with it piecemeal, that is probably the best way to do it, simply to not make any orders today; to adjourn the matter in the circumstances we have just discussed; and there will be a hearing of the application initially once the other judgment is known.

MR KOVATS: My Lord, the Secretary of State would be content with that.

MR JUSTICE CRANE: And whether, if there were to be any further hearing on that, there would need to be representation; that would be something to consider a little way down the line. But I am anxious, frankly, not to embark on this in a piecemeal way when there may be more to be known that will assist. Are you both happy with that approach in the end?

MR BOWEN: My Lord, yes.

MR JUSTICE CRANE: What I think I will do then - leave aside costs for a moment - is I will adjourn consideration of orders to be made as a result of this judgment to come back before me when the result of the KB case is known, and at that hearing any application to join other parties will also be considered.

Mr Kovats, I am not sure if it is necessary in those circumstances to extend the time for asking for leave to appeal, but it seems to me in those circumstances - it may be belt and braces - it is probably better to do it.

MR KOVATS: My Lord, I have had this problem before. Civil Appeals Office regard time as running from the date of the order, but the wording of rule is ambiguous.

MR JUSTICE CRANE: It would plainly be, I would have thought, pointless to embark on discussion of appeal today when there are still the other matters that may raise further questions. Very well, I will extend the time for applying for permission to appeal, if it is necessary, until the resumed hearing.

Mr Bowen, what do you say about dealing with costs today?

MR BOWEN: My Lord, I would be content for costs to be dealt with in the round at the next hearing. Other people's costs will then come into the equation.

MR JUSTICE CRANE: They may do, yes.

MR BOWEN: It might be sensible -- I cannot see how there can be any other order as to costs to date other than the defendant to pay the claimant's costs.

MR JUSTICE CRANE: It is probably still tidier to deal with it all in one.

MR BOWEN: Very well. I think I probably could have a detailed assessment.

MR JUSTICE CRANE: There is a certificate filed, is there? Provided the certificate is filed within 7 days you can have a public funding assessment. One has been filed. I do not think I need to make any direction about it, but if questions of joinder or any other matters arise as a result of the decision in KB, I would welcome short skeleton arguments if either party wishes to submit them. I shall not make any direction about that. There may be questions of principle which arise.

MR BOWEN: Would it be helpful if for our part we were to serve letters before action and serve a formal notice of application for joining the other parties before the hearing takes place?

MR JUSTICE CRANE: My suggestion was that, if you want to place yourself in the best possible position, it would be wise to write letters before action now. That is very much a matter for the claimant's advisers. But certainly I do not want two further hearings. So at the adjourned hearing I would want to consider any application, as I think I have already said, for joinders.

MR BOWEN: It follows that I have to file the application for that.

MR JUSTICE CRANE: Absolutely, yes. You need to -- I think it follows from the fact that -- perhaps I had better add to my directions today any application for joinder to be filed and served prior to the adjourned hearing - as a reminder of what needs to happen.

MR BOWEN: Would it be helpful at this stage to deal with the question of time estimates for any such hearing?

MR JUSTICE CRANE: Yes, I think it would. If I say time estimates -- I will direct time estimates and skeletons not later than seven days before the hearing.

MR BOWEN: The listing office will probably need an idea of some time estimate when the date is fixed. If we were to indicate to them when ---

MR JUSTICE CRANE: They are bound to ask in the usual way, are they not?

MR BOWEN: I was wondering if your Lordship has any thoughts about that.

MR JUSTICE CRANE: I think it depends very much on how much we are going to discuss at that hearing. The main question I suppose will be joinder.

MR BOWEN: If joinder takes place, probably we will have to go to another hearing for the contested part of the confiscation.

MR JUSTICE CRANE: If joinder is allowed then I imagine that any other party or parties would -- I do not envisage it will all happen at once; there will have to be -- I should have thought the joinder hearing will be no more than an hour?

MR KOVATS: My Lord, it very much depends on what attitude the Attorney and the hospital take.

MR JUSTICE CRANE: Of course. I suspect that -- they may regard it as an important new point in it. I think it is, potentially.

MR BOWEN: My Lord, can I just flag one potential issue that may arise? It might be worth discussing now. The hospital and/or the Attorney-General may wish to argue that in fact it should be the Secretary of State for the Home Department who is responsible, and that they have not had an opportunity to argue that point before it was resolved by your Lordship. So the question arises whether it would be open to your Lordship to reconsider that question as to whether in fact ---

MR JUSTICE CRANE: I think we must cross that bridge when it arises. It did cross my mind. At the moment there is the ruling I have made about that in the light of what the Court of Appeal has said, although -- it probably is not obiter but I suppose it might arguably be so. There might be further authority by then. If any question arises about re-arguing that, it would have to be left for consideration at the next hearing. I agree with you; the point could crop up and they might want to argue that, in which case we will have to cross that bridge when we come to it.

MR BOWEN: It could be considered now rather than wait until it is considered by the Court of Appeal.

MR JUSTICE CRANE: It could be but I do not think I can -- I think you are right to flag up the possibility, but it is a matter for consideration among other things at any adjourned hearing and on any application for joinder.

MR BOWEN: Very well, my Lord.

MR JUSTICE CRANE: And they might raise quite difficult issues. I agree with you that they might have something to say about that, and in certain circumstances the court can reconsider decisions. But I think we will cross that bridge when we come to it and see if anybody raises it. All right. Thank you both very much.

Can I mention that I am out of London for the first half of next term but it does not look as if that will cause any great problem. I am sitting in the Administrative Court, I think, the first three weeks of the second half of next term. So I should think that is quite a likely time for us to be back anyway. Thank you very much.