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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 >> X v An NHS Trust [2008] EWHC 986 (Admin) (07 May 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/986.html Cite as: [2008] MHLR 139, [2008] EWHC 986 (Admin), [2008] LS Law Medical 359

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2008

MR JUSTICE FOSKETT :

Introduction

1. This claim for judicial review raises an interesting and, on one view, a potentially concerning issue arising from the operation of Section 37 of the Mental Health Act 1983. By that section a criminal court may, instead of sentencing someone convicted of an offence punishable with imprisonment, make what is known as "a hospital order" if the offender's mental or psychiatric condition makes it appropriate to do so.
2. The Claim Form was dated 17 April 2008 and on that day Owen J. ordered that an oral hearing for permission, to be followed by a substantive hearing if permission was granted, be heard on 25 April. I heard the submissions on that day and reserved judgment. I have given permission to apply for judicial review and have treated the hearing as the substantive application.
3. In 2004 657 hospital orders were made by Crown Courts and Magistrates' Courts without any restriction as to time (see paragraph 7 below) and 288 such orders were made (by the Crown Court) with restrictions as to time: "Statistics of Mentally Disordered Offenders 2004" published by the Home Office. Inevitably, some made the subject of a hospital order will be dangerous offenders (and probably made the subject of a restriction order), others (like the claimant in this case) will be psychiatrically disturbed, though not dangerously so. However, the same legislative regime applies to the making of the hospital order itself, whether subject to a restriction order or not.
4. As the more detailed analysis of section 37 below demonstrates, the intention of the section is that someone made the subject of a hospital order should take up a place at a hospital or other unit specified in the court order within 28 days of the order. The broad issue that arises for consideration in this case is the legal status of someone who a court intends should be received into a particular hospital or unit pursuant to such an order within 28 days of the order, but in fact is not received into that hospital or unit until after the expiration of that period with no additional authority by the court having been given. Does that result in the court's order becoming frustrated and of no further effect such that the continued detention of the patient thereafter is unlawful? Or does the order still have effect and the continued detention fall to be treated as being authorised by the order of the court?
5. I will explain how the issue arises on the facts of this case in due course, but it may be helpful to note the terms of section 37 and the way it is intended to operate. I should say that, in addition to my indebtedness to both counsel for their assistance, I have been greatly assisted in my analysis of the statutory provisions and the general history by the "Mental Health Act Manual", 10^th Edition, by Richard Jones.

Section 37 of the Mental Health Act 1983

6. The relevant parts of section 37 of the Mental Health Act 1983 are as follows:

(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law … and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

(2) The conditions referred to in subsection (1) above are that

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either —

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

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

…

(4) An order for the admission of an offender to a hospital (in this Act referred to as "a hospital order") shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital …, and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.

(5) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given —

(a) the Secretary of State shall cause the person having the custody of the patient to be informed, and

(b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.

7. As previously indicated, the court has power to restrict the circumstances in which someone made the subject of a hospital order may be released: section 41. That jurisdiction was not exercised in this case (since it was not the view of any medical practitioner that it was necessary), although it frequently is in cases where the court is concerned about the protection of the public from an offender with serious psychiatric problems.
8. The nature and the effect of a hospital order (and a restriction order) was explained by the Court of Appeal in R v Birch (1989) Cr.App.R(S) 202, 210-211:

"Once the offender is admitted to hospital pursuant to a hospital order or transfer order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the "responsible medical officer." In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period … and if he is allowed continuous leave of absence for more than six months, he cannot be recalled ….

Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).

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

In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it fundamentally affects the circumstances in which the patient is detained. No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities. Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before September 30, 1983) and now to the Secretary of State and the Mental Health Review Tribunal. A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence.

Under the Act … the power of the court and the Secretary of State had the following features in relation to a restriction order. Before the order could be made, first, the court was required to have regard to: (a) the nature of the offence, (b) the antecedents of the offender and (c) the risk of his committing further offences if at large. For some reason the second factor relates, and still related, only to the antecedents of the offender, and not to his character and antecedents, as in the case of the conditions for a hospital order. Secondly, the court had to decide, in the light of these factors, whether it was necessary for the protection of the public to order that the offender should be subject to special restrictions.

The effect of a restriction order was essentially that the responsibility for the return of the patient to the community was transferred from the hospital authorities to the Secretary of State. He alone could consent to leave of absence, and decide to recall the patient from such leave. If the patient went absent without leave, the automatic discharge for prolonged absconders did not apply. Neither did the provisions for expiry and renewal of the authority to detain, so that the patient could not be discharged whilst the restriction order remained in force: and the power to lift the restriction was vested in the Secretary of State. The nearest relative could not procure the discharge of the patient. The Review Tribunal could advise the Secretary of State, but not procure the release of the patient."

9. The reference in that judgment to the differences between the positions of an offender and a civil patient (i.e. someone "sectioned" under section 3 of the Act) are that, unlike the position of a "sectioned" patient, a person made the subject of a hospital order (a) cannot be discharged by virtue of the intervention of his "nearest relative" and (b) cannot apply to a Mental Health Review Tribunal (MHRT) within the first six months of detention (Schedule 1, paras 2 and 9). The first opportunity for someone subject to a hospital order to apply to a MHRT is in the period 6 – 12 months from the order being made: ss.66(1)(f), 66(2)(f) and 69(1).
10. I do not have sufficient evidence in the case to be able to make an informed finding about the general position, but it is at least conceivable that the "comparatively modest importance" of the difference between the position of the "sectioned" patient and one the subject of a hospital order mentioned by the Court of Appeal in Birch some 20 years ago may now, in some cases, not be quite so modest. I have been told on behalf of the Claimant, without contest on the part of the Defendant, that if he is to be regarded as detained under a hospital order then the earliest he will be able to apply for discharge from hospital will be 17 December this year, but that in consequence of the pressures of listing before the MHRT the actual date for consideration of his application would be significantly after that date. If the Claimant is, as a result of this case, to be treated as free to leave hospital (because he has been hitherto unlawfully detained) but were then to be "sectioned" by the Defendant's medical staff (which, as I understand it, the Defendant would propose to consider urgently if that eventuality arose) he would be able to apply for a discharge within the first six months of any further period of detention which ran from the date of his new section. It does follow that the outcome of this case may have more than "comparatively modest implications" so far as his personal situation is concerned.
11. As I have observed in paragraph 4 above, the obvious intention of section 37, deduced from subsection (4), is that a hospital order "shall not be made" unless the court is satisfied that "arrangements have been made … for [the patient's] admission to [a named hospital or unit] within the period of 28 days beginning with the date of making [the] order". The court is required "give such directions as it thinks fit for [the patient's] conveyance to and detention in a place of safety" pending his admission to the named hospital "within that period" of 28 days.
12. History demonstrates, and a case such as R v Galfetti [2002] EWCA Crim 1916 confirms, that it is not always possible for a suitable hospital placement to be found to enable this clear statutory intention to be fulfilled. This can result in a considerable delay before the patient finds him or herself in the setting appropriate for his or her needs and can result in a prolonged stay in prison pending the finding about setting. As May LJ observed in R v Galfetti -

"Section 37 and other sections of the 1983 Act providing for hospital orders are an essential part of the court's powers of disposal. Mentally ill offenders, who may be a danger to the public, may need treatment, not imprisonment. But the necessary requirement, that the court cannot make a hospital order unless a place in an appropriate hospital will be available within 28 days, means that the proper administration of justice is frustrated if a place cannot be found within a reasonable time."

13. It is obvious that, certainly in cases of significant delay, Human Rights issues may potentially arise: see, e.g., Aerts v Belgium (2000) 29 EHRR 50; Brand v Netherlands [2001] M.H.L.R. 275.
14. As will be apparent from what happened in Galfetti, the usual procedure when the court is faced with this kind of problem is for the matter to brought back to court within the 28 day period for a further order to be made. If no hospital placement has been identified at that point, but the prospect still exists, the court will often adjourn the matter to a further date for further consideration. If the problem is that the originally intended hospital placement is no longer available, but another suitable placement has been identified, the court can amend the original order pursuant to the powers now contained in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. I will refer to the terms of that section below.
15. The origin of the practice of bringing the case back before the court before the expiration of 28 days appears at least in part to derive from Home Office Circular 66/1980 (addressed to Magistrates' Courts) and a direction apparently issued by the then Lord Chief Justice in 1979. (I say "apparently" because, in the time I have had to prepare this judgment, I have been unable to locate the source of the direction.) The relevant part of the Circular is as follows:

"I am directed by the Secretary of State to draw your attention to a problem which can arise when a hospital order is made … and the defendant is committed to a place of safety for up to 28 days … pending admission to hospital, but the hospital subsequently withdraws its undertaking to take him. There may on occasions be little or no prospect of arranging an alternative placement within the 28 days currency of the 'place of safety' direction. In the absence of the intended admission to hospital the prison must release the person on the 28^th day, and the court order … is frustrated. The purpose of this Circular is to inform you of a change of procedure introduced last year in the Crown Court, which attempts to deal with this problem, and to suggest that, in consultation with the Chairman of the Bench, consideration might be given to adopting a similar procedure at Magistrates' Courts.

The Crown Court has power … to vary sentence on a defendant within 28 days, and the purpose of the new procedure is to ensure that the court is forewarned of the possible frustration of the hospital order and so has the opportunity to pass an alternative sentence before the authority to detain a person is extinguished. Last year, after consultation with the Home Office, the Department of Health and Social Security and the Lord Chancellor's Department, the Lord Chief Justice directed that an additional direction be given by the court … addressed to the Governor of the prison which is to hold the person pending admission to hospital, which reads as follows:

'But if at any time it appears to the person in whose custody the defendant is detained in a place of safety that the defendant might not be admitted to hospital in pursuance of this order within 28 days of this date, that person shall within 21 days of this date (or at once if it becomes apparent only after 21 days that the defendant might not be admitted to hospital) report the circumstances to the Chief Clerk of the Court and unless otherwise directed by the Chief Clerk shall bring the defendant before the court forthwith so as to enable it within 28 days of this date to make such order as may be necessary'."

Attention was drawn in that Circular to the equivalent powers of the Magistrates to re-sentence if such a situation should occur when a Magistrates' Court is faced with wishing to make a hospital order, but the kind of practical problems to which I have referred above arise.

16. It is noteworthy that May LJ in Galfetti and the Home Office official writing on behalf of the Secretary of State each used the word "frustrated" in the context of what happens when a hospital placement is either not found or ceases to become available within the 28 day period or within any extended period arising from an adjournment. Mr Alexander Ruck Keene, for the Claimant, has sought to give the word "frustration" a particular connotation in the context of what happened in this case to which I will refer later.
17. Before turning finally to the facts of the case, I should set out the relevant parts of the Powers of Criminal Courts (Sentencing) Act 2000 because one issue that falls for determination is the interpretation and effect of an order made by the Crown Court in this case pursuant to its powers under section 155.

The Powers of Criminal Courts (Sentencing) Act 2000

18. Section 154(1) of The Powers of Criminal Courts (Sentencing) Act 2000 is as follows:

A sentence imposed, or other order made, by the Crown Court when dealing with an offender shall take effect from the beginning of the day on which it is imposed, unless the court otherwise directs.

19. The relevant parts of section 155 of the Act are as follows:

(1) Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of 28 days beginning with the day on which the sentence or other order was imposed or made or, where subsection (2) below applies, within the time allowed by that subsection.

…

(4) A sentence or other order shall not be varied or rescinded under this section except by the court constituted as it was when the sentence or other order was imposed or made, or, where that court comprised one or more justices of the peace, a court so constituted except for the omission of any one or more of those justices.

(5) … where a sentence or other order is varied under this section the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs.

20. It is thus clear from subsection (5) that, unless the court otherwise directs, a varied order takes effect from the date of the original order.

The factual background

21. The claimant is now aged 28. Prior to the material events that occurred in 2004 and early 2005 he had a history of comparatively minor offending. There were a number of offences of theft, largely committed to fund his drugs habit, but one or two offences of a more serious nature involving common assault in 1999, for which he received a 3 month sentence in Young Offenders Institution, and an offence of indecent assault in 2001 for which he received a 3 months prison sentence. Various other offences were committed in 2002-2004 the circumstances of which, for present purposes, need not be recited. During his sentence for the indecent assault it appeared to the medical authorities that he was showing signs of paranoid schizophrenia, a condition in respect of which a firm diagnosis has been made subsequently. It is likely that this condition accounts for the nature of his more recent offending and other anti-social behavior.
22. He was convicted before the Crown Court of an offence of affray on 1 September 2003 and sentenced initially to a community rehabilitation order. He was then, and continued to be, a patient of the community mental health team and was receiving anti-psychotic medication.
23. He was generally cooperative at this time, but in due course left the area where he was being treated and breached the community rehabilitation order. It is unnecessary to recite the full history of what occurred between then and when he appeared before the Crown Court again for breaches of the community rehabilitation order on 22 October 2004 save to say that his behavior gave cause for concern and, whilst in custody pending the return of the case to court, he was examined by a forensic psychiatrist. He recommended that the claimant should be made the subject of a hospital order and identified a unit (I will call it "the X Unit") that would be able to take him within 28 days. Another consultant forensic psychiatrist confirmed that view and the Crown Court duly made the order on 22 October directing that the claimant be detained in the X Unit.
24. However, the claimant became more difficult to manage in prison whilst his transfer to the X Unit was pending than had been anticipated and, against the background of other difficulties within the X Unit, it was felt that he should be moved to another unit, "the Y Unit". Arrangements were made for him to be assessed for that unit. The matter was brought back before the Crown Court on 15 November when it was explained that a bed was no longer available for him at the X Unit. The case was adjourned pending the further assessment. A report was obtained from a further consultant forensic psychiatrist who recommended that the claimant be received into a unit "of medium security in order to initiate treatment and stabilize his mental state." It would seem that the intention was for him to be admitted to the Y Unit, although this was not specified in the report.
25. Three days after the date of that report, on 17 December 2004, the claimant was brought back before the Crown Court and a hospital order was made specifying the X Unit as to which the claimant should be conveyed (immediately, it seems) by the prison service. That was plainly not what was intended by the report referred to in paragraph 24 above and it seems that that report had not been received by the Crown Court before the order was made. This was all somewhat unsatisfactory and must have been disturbing for the claimant in his precarious mental state, but at all events the mistake was obviously noted and the matter was brought back before the Crown Court judge on 21 December 2004 when the order made on 17 December 2004 was varied.
26. I will refer to the manner in which that variation was recorded on the face of the order shortly, but a transcript of what occurred has been obtained. The claimant was represented by Counsel on that occasion, but it seems that he asked the judge directly when the 28-day period, which the judge had presumably mentioned, started to run. The judge told him that it should start from 17 December, the day when the hospital order was made. That, of course, was entirely in accordance with the usual consequences of applying section 155 of the 2000 Act (see paragraph 18 above). The judge added the words, when addressing the claimant, "so you should be there by 15^th January." In fact, that was not quite accurate – the date should have been the 14^th January – but the judge's intention was clear.
27. The order drawn up by the Crown Court followed what appears to be a standard form of order. It is set out here:

IN THE CROWN COURT Case No:

AT Court Code:

Hospital Order [(with restrictions ordered under section 41 Mental Health Act 1983)]

The defendant.....................................................................Date of Birth

was, [on................................convicted of][indicted for][an offence][punishable with imprisonment,

namely

[and it appeared to the court that it was impractical or inappropriate to bring the defendant to court].

[The Court was satisfied hat the defendant was suffering from the following form(s) of mental disorder within the meaning of the Mental Health Act 1983:

[mental illness], [psychopathic disorder],[mental impairment],[severe mental impairment]

On................................the Court:

•    ORDERED that, within 28 days from the date of this order, the defendant should be admitted to and detained in a hospital, namely

•    ORDERED that, within 28 days from the date of this order, the defendant should be admitted to and detained in a hospital unit, namely

[and that the defendant should be conveyed to that hospital by................................]

•    [DIRECTED that, pending admission to a hospital within the 28 day period, the defendant should be conveyed to and detained in a place of safety, namely................................]

•    [FURTHER ORDERED that the defendant should be subject to the special restrictions set out in section 41 of the Mental Health Act 1983 [for......years from the date of this order][indefinitely]]

The Court

•    [heard oral][considered written] evidence given by 2 medical practitioners, [each][one] having been approved by the Secretary of State under section 12(2) of the Mental Health Act 1983.

•    [heard oral][considered written]evidence given by [the medial practitioner who would be in charge of the defendant's treatment] a person representing the managers of the hospital specified in this order] that arrangements had been made for the defendant's admission to the hospital specified in this order within 28 days from the date of this order.

•    Was satisfied that all other conditions required by section 37(1)(51) of the Mental Health Act 1983 for the making of a hospital order had been fulfilled.

•    [heard evidence as required by section 41(2) of the Mental Health Act 1983].

•    [had regard to the matters specified in section 41(1) of the Mental Health Act 1983 and it appeared to the Court that to protect the public from serious harm a restriction order should be made].

................................................................................................ An Officer of the Crown Court

Date:................................

28. As can be observed, it contains a pre-amble identifying the defendant, his date of birth, the date and nature of his conviction and the nature of the mental disorder from which the court is satisfied that the offender is suffering to give rise to the making of the order. Then various alternative orders are provided for. The version in use at the time appears to be one in which the final form was completed by making manuscript amendments to the standard form.
29. Before identifying what the order in this case said (see paragraph 30 below), I might observe two things about the standard form used here: (i) it does not contain a direction in the terms of that directed by the then Lord Chief Justice in 1979 (see paragraph 14 above); (ii) it does not contain a provision which can be made to refer to the fact that the order represents a variation of an earlier order. As to (i), I am unaware whether the original direction referred to in the Home Office Circular has been withdrawn such that a provision of this nature is no longer thought necessary. I would merely raise the question of whether thought might be given to reintroducing something like it in the standard order. As to (ii), consideration might be given to its inclusion if only to focus the minds of all concerned about when precisely the relevant 28 day commences.
30. The order drawn up on 21 December 2004 in this case was headed in manuscript "Order varied from 17.12.04" and in the body of the order it provided that "on 17 December 2004 the court … ordered that, within 28 days from the date of this order, [the claimant] should be admitted to and detained in [the Y Unit] and that [the claimant] should be conveyed to that hospital by [the] prison service." The provision in the order dealing with the conveyance to a place of safety in the meantime was deleted. No complaint has been made about that, but one would have thought that if, as was plainly contemplated, the claimant had to remain in prison until the placement became available, a direction that he remain there pending admission to hospital should have been made.
31. The date at the foot of the order was, of course, 21 December 2004 and one issue I have to determine is the meaning and effect of that order. The reason for the importance of this issue is that if its true effect was that the 28 day period ran from 21 December, the Trust will have fulfilled its obligation to provide the claimant with the specified placement within that period. If the order took effect from 17 December, then the Trust will have failed to secure his placement by three days. It seems that the order I described in paragraph 30 was interpreted by those responsible for its implementation as involving an obligation to provide the specified placement by 18 January – i.e. 28 days from 21 December. Indeed that was what was achieved: the claimant went to the specified unit on 17 January.
32. In my judgment, it was entirely understandable that a non-lawyer reading the order of 21 December as it was drafted could interpret the 28 day period as running from that day. Indeed a superficial reading of it even by someone legally trained might well have led to the same conclusion if the terms of section 155 of the 2000 Act were not in the mind of the person reading it. However, was that its true effect?

The meaning and effect of the order of 21 December 2004

33. It is, of course, clear that the interpretation placed upon it by those responsible for its implementation was not the interpretation that the judge intended (see paragraph 26 above). Whatever may have been the intention, of course, the interpretation of an order of the court is an objective matter and I have to construe it accordingly. Although Mr Lock has sought to argue that the manuscript words at the top did have the effect of making the order run from 21 December, I am not able so to read them. Section 155 is clear as to its effect "unless the court otherwise directs". In my view, a specific and unequivocal direction needs to be incorporated on the face of the order for the natural effect of section 155 to be altered. I cannot interpret any feature of the order drawn up on 21 December as constituting such a direction.
34. It follows, in my judgment, that the order of 21 December 2004 did require the claimant to be removed to the specified unit by 14 January 2005. That being so, the issue arises of the legality of the claimant's detention after 14 January 2005.

The legality of the claimant's detention after 14 January 2005

35. I have not received any submissions on behalf of The Prison Service, but it cannot be denied that the claimant's detention in prison between 14 January 2005 and 17 January 2005 was not "authorised" by a court order. Strictly speaking, a "place of safety" direction should have been given under section 37(4). Had the problem been identified, I have no doubt that the case would have been put back before the judge to secure continued authorisation for the claimant's detention. Equally, I have no doubt that the application would have been unopposed. However, this did not happen and, as it seems to me, the claimant's detention for those three days was, on strict analysis, unlawful.
36. Without, of course, underestimating the vital importance of ensuring that anyone should be deprived of his or her liberty only in consequence of proper authority, the reality in this case is that the claimant was no worse off in consequence of the three days detention than he would have been if the further authorisation of the court had been obtained. There had been, it appears, further delay in the placement becoming available and it is inconceivable that the court would not have authorised the continued detention.
37. The more important consideration is whether, as Mr Ruck Keene contends, his detention from 17 January onwards was unlawful. The argument, in a nutshell, is that the authority to detain the claimant pursuant to a hospital order expired on 14 January 2005, that by the time he was detained in the Y Unit on 17 January there was no authority to do so and that his continued detention thereafter was thus unlawful.
38. Mr Ruck Keene has acknowledged that the challenge made to the lawfulness of the claimant's continued detention is technical, but contends, on the basis of the matters referred to in paragraph 10 above, that it does have real consequences for the claimant.
39. The legal issue is, therefore, whether the order made on 21 December 2004 ceased to have effect on 14 January 2005. Mr Ruck Keene argues that it is necessary to read section 37 in a way that is compatible with Article 5(1) of the European Convention on Human Rights. He contends that the lack of express provision within section 37 specifying that an order made thereunder shall cease to have effect at the expiration of 28 days, or its silence as to the consequences of the expiration of that period, is either evidence of, or should, to give effect to Article 5(1), be interpreted as evidence of, the intention of the statute, namely, that no authority for detention survives the expiration of the 28 day period. Borrowing the word "frustration" from the two sources I refer to in paragraphs 15 and 16 above, he submits that the order in effect came to an end. He argues that section 37 should be interpreted restrictively.
40. Mr Lock contends that provided the order was validly made in the first instance (which this order plainly was), then merely because it was not complied with within the 28 day period does not mean that it ceased to have effect. He points to what he submits would be one of the extraordinary consequences of doing so, namely, that the court's alternative sentencing options would evaporate at the expiration of the 28 days. He draws attention to the fact that it is section 37(1) that constitutes the authority for the admission and detention of the relevant defendant to a specified hospital and that that subsection does not specify any time limit. He distinguishes that subsection from subsection (4) which, he argues, specifies one of the requirements for making an order (namely, that a place will be available within 28 days) and limits the duration of a "place of safety" direction to one of 28 days. He argues that this subsection, properly construed, does not have the effect of depriving an order made under section 37(1) authorising detention in a specified hospital from having legal effect merely because there is a delay in compliance.

Conclusion

41. For my part, I am not sure that this issue requires any very sophisticated analysis. There was in this case a valid order under section 37 made on 21 December 2004. Its effect was to order that, within 28 days from 17 December 2004 (see paragraph 34 above), the claimant should be admitted to and detained in the Y Unit. The intention of the order plainly was that in the meantime the "place of safety" for the claimant should be prison and that the authority to keep him in prison was confirmed by that order. (As I have previously indicated, in my view, that should have been spelled out expressly in the order, but no complaint is made about it.) He was not admitted to the Y Unit within that period. That rendered his detention for the relevant three days unlawful. However, the authorisation for his admission to and detention in the Y Unit still existed after 14 January: the order directing it had not been set aside or varied in the meantime.
42. In my judgment, it cannot be said that the order simply ceased to exist and have no effect on the expiration of the 28 day period. Under the general law an order remains a valid order (even if not complied with) until it is set aside on appeal or by some other means. The obligation to comply with it, albeit late, still exists. Indeed, whilst the analogy with situations within the civil jurisdiction may not be wholly apt, it is well established that even a consent order which, in effect, (a) has penal consequences and (b) has been made without jurisdiction to make it, remains valid and enforceable until set aside: see, e.g., IRC v Hoogstraten [1985] QB 1077; Isaacs v Roberston [1985] AC 97; Nicholls v Kinsey [1994] QB 600.
43. Mr Ruck Keene has argued that a conclusion to this effect could lead to a result that is radically incompatible with Article 5(1). I do not accept this. The claimant's detention from 17 January was authorised by a procedure prescribed by law. It was not so authorised in the three day period before that and, had the point been noted, he would have been entitled to have been released from prison. Those two conclusions seem to me to be entirely in accordance with Article 5(1). In practice, of course, it is highly unlikely that he would have been released had the point been noted because he would almost certainly have been "sectioned" if there was any prospect of him walking free at that point. That, as I say, is likely to have been the practical situation that would have arisen in this case. However, it is at this point in the sequence of events when, in my view, concerns could arise and where it is important that court orders spell out precisely and clearly what is to happen so that everyone involved knows the parameters within which they are operating.
44. A number of hypothetical situations were advanced in argument. For example, Mr Ruck Keene suggested that the interpretation of section 37 for which the Trust contended, and which I have largely accepted, would mean that there could be a very substantial delay between the making of the Hospital Order and its effective implementation by which time the circumstances could have changed. For example, the psychiatric condition of the relevant defendant may no longer justify admission and detention in a psychiatric unit. Whilst I think I should confine myself to the circumstances of the case before me, I would merely observe that if such a situation should arise (which I am bound to say, seems very unlikely), the formal recourse of a defendant in such a situation would presumably be by way of appeal out of time to the Court of Appeal. In Regina v Beatty [2006] EWCA Crim 2359, Scott Baker LJ, giving the judgment of the court, said this:

"Section 11(3) of the Criminal Appeal Act 1968 provides that, inter alia, the Court of Appeal can quash a sentence if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below and in place of it pass such sentence or make such order as the court below had power to pass or make when dealing with him for the offence.

Plainly the subsection is sufficiently wide to permit the court to re-sentence the appellant on information placed before it which was not put before the sentencing judge. As Beldam L.J. pointed out in Sawyer, 16 December 1993, unreported, the subsection gives the court an opportunity to review the sentence, its effect on the appellant, and to consider whether having regard to the circumstances which were then before the court and which have happened since, it is necessary in the interests of justice for the court to confirm a sentence of the length imposed. He went on:

"Without regarding the judge's sentence as wrong we believe that in the interests of justice we can review the sentence in the light of the circumstances as they now are."

45. My conclusion on the main issue means that it is not strictly necessary for me to consider the effect which the claimant's two applications to a Mental Health Review Tribunal since the making of the hospital order have had on his claim for judicial review. The Trust intimated that it would contend that the appropriateness of his continued detention had thus twice been considered by a Mental Health Review Tribunal and also that his case had been reviewed on various occasions by the hospital's managers. For my part, I would not have considered this an impediment to considering the matter put before me. If the effect of what happened in December 2004/January 2005 was that he was thereafter detained without lawful authority, then I cannot see how that issue could not be raised notwithstanding what has happened in the meantime unless there was some express and fully informed decision not to raise the point. It appears, in any event, that it was only when the claimant's new solicitors looked into the matter in January this year that the point was noted. His application to the Mental Health Review Tribunal in March was expressly made without prejudice to his contention that he was unlawfully detained.
46. At all events, for the reasons I have given, I am of the view that his detention since 17 January 2005 was lawfully justified by the order of 21 December 2004.