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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Lee-Hirons v Secretary of State for Justice [2016] UKSC 46 (27 July 2016) URL: http://www.bailii.org/uk/cases/UKSC/2016/46.html Cite as: [2016] WLR(D) 424, [2016] Med LR 551, (2016) 19 CCL Rep 383, [2017] AC 52, [2016] UKSC 46, (2016) 151 BMLR 1, [2016] 3 WLR 590 |
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[2016] UKSC 46
On appeal from: [2014] EWCA Civ 553
JUDGMENT
Lee-Hirons (Appellant) v Secretary of State for Justice (Respondent)
before
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
27 July 2016
Heard on 26 April 2016
Appellant Jenni Richards QC John McKendrick QC (Instructed by Stephens Scown LLP) |
|
Respondent Martin Chamberlain QC Oliver Jones (Instructed by The Government Legal Department) |
LORD WILSON: (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agree)
A: INTRODUCTION
(1) Was such an explanation legally sufficient?
(2) If not, did it make the appellant’s renewed detention unlawful?
(3) If his detention was unlawful, should the court formally so declare and, in particular, should it award him damages for it and, if so, how much?
Fifteen days after the appellant’s recall, a fuller oral explanation for it was provided to him. The Minister concedes that each of two separate legal principles required it to have been provided to him within three days of the recall and indeed in writing. These conceded breaches of the appellant’s rights generate three further questions:
(4) Did the breaches make the appellant’s detention between the third and the fifteenth days following his recall unlawful?
(5) If so, should the court formally so declare and, in particular, should it award him damages and, if so, how much?
(6) Even if they did not make his detention unlawful, should the court make the breaches the subject of a formal declaration and, in particular, should it award him damages for them and, if so, how much?
3. The appellant appeals against the order of the Court of Appeal dated 1 May 2014, whereby it dismissed his appeal against the dismissal of his application for judicial review of the Minister’s explanations to him: [2014] EWCA Civ 553, [2015] QB 385. The leading judgment was given by Sir Stanley Burnton; and Jackson LJ (who added some observations of his own) and Patten LJ both agreed with it. In effect the answers to the questions given by the Court of Appeal were:
(1) Yes.
(2) Not applicable.
(3) Not applicable.
(4) No.
(5) Not applicable.
(6) Not addressed but the court’s order means no.
B: BACKGROUND
7. From 11 June 2012 to 19 July 2012 the appellant resided at the care home in Lancaster.
14. As quickly as 13 August 2012 the appellant’s long-standing and energetic solicitors in Cornwall wrote a pre-action letter to the Ministry, by which he challenged the lawfulness of the decision to recall him to hospital. On 19 October 2012 his application for judicial review was issued. It is clear from the judgment by which Dingemans J dismissed the application (reported together with the judgments in the Court of Appeal at [2015] QB 385) that at that stage the appellant’s primary case was that there were insufficient grounds for the Minister’s decision to recall him. But it was only his secondary case that he took to the Court of Appeal, namely that there was an unlawful failure to explain the reasons for the recall to him; that the failure infected the legality of his detention; but that, even if it did not do so, it nevertheless generated a right to a declaration and damages.
C: THE CONCEDED BREACHES
(1) at the time of the patient’s return to hospital, the person returning him should inform him in simple terms that he is being recalled by the Minister and that, to the extent possible, a further explanation will be given later;
(2) as soon as possible after re-admission to hospital and in any event within 72 hours of it the patient’s responsible clinician or another specified person at the hospital should explain to him the reasons for his recall and ensure so far as possible that he understands them; and
(3) within 72 hours of his re-admission the patient should be provided with a written explanation of the reasons for his recall.
17. Where a public authority issues a statement of policy in relation to the exercise of one of its functions, a member of the public to whom it ostensibly applies, such as this appellant, has a right at common law to require the authority to apply the policy, so long as it is lawful, to himself unless there are good reasons for the authority not to do so: Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546, paras 29-31.
(1) Para 1(e) provides that the lawful detention of persons of unsound mind is a case in which deprivation of liberty is permissible so long as it is in accordance with a procedure prescribed by law.
(2) Para 2 provides:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
(3) Para 4 provides that everyone deprived of his liberty should be entitled to take proceedings by which a court will speedily decide the lawfulness of his detention.
(4) Para 5 provides that every victim of detention in contravention of any of the earlier paragraphs should have an enforceable right to compensation.
21. The Minister therefore concedes that:
(1) he breached the appellant’s right at common law to receive within three days an adequate explanation for the recall in accordance with published policy; and
(2) he also breached the appellant’s analogous right under article 5(2) of the Convention to be informed promptly of the reasons for his recall.
D: CONTEXT
(1) He is depriving a person of liberty. We can be proud of the fact that, even in the dark ages, our law recognised the need for strict control of a deprivation of liberty: “no free man”, so King John was obliged to concede in clause 39 of Magna Carta (9 Hen 3), “is to be arrested, or imprisoned … nor will we go against him or send any against him, except by the lawful judgment of his peers or by the law of the land”.
(2) Only exceptionally will the law countenance a deprivation of liberty at the direction of the executive, rather than of the judiciary before whom protections are built into the system.
(3) In particular the procedure entitles the Minister to effect a person’s recall without having received any representations by him or on his behalf.
(4) Often, as in the present case, the Minister is depriving a person of liberty shortly after a judicial body concluded that, albeit subject to conditions, he was, on the contrary, entitled to liberty.
(5) The person whom the Minister is depriving of liberty is, as a restricted patient, a member of “a particularly vulnerable group and therefore any interference with their rights must be subject to strict scrutiny” (Zagidulina v Russia, European Court of Human Rights (“ECtHR”), 2 May 2013, Application No 11737/06, para 52). The patient may well be unable to respond to his recall in a manner which, objectively, would best serve his interests.
(6) The recall deprives the person of liberty for an indefinite length of time subject only to the possibility of further discharge at some stage.
(7) The recall exposes the person to the possible administration to him of medical treatment without his consent pursuant to section 58(3)(b) of the Act.
E: QUESTIONS (1), (2) AND (3)
24. The appellant cannot contend that the explanation provided to him by Mr Hart at the time of his recall failed to comply with the Minister’s published policy referable to the provision of an explanation at that first stage. In this regard the appellant invokes a different strand of the common law; and the cornerstone of his submission is the decision of the House of Lords in Christie v Leachinsky [1947] AC 573. There police officers arrested the respondent without a warrant. They told him that they were arresting him for an offence categorised as a misdemeanour, for which there was no power to arrest without a warrant. In fact they had reasonable grounds for suspecting that he had committed a felony, namely larceny of a bale of cloth, which, but for the deficit identified by the House of Lords, would have entitled them to arrest him without a warrant. The deficit was that they did not tell him that they were arresting him on suspicion of larceny of the cloth. Viscount Simon said at p 586:
“… in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested.”
Lord Simonds said at p 592:
“Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moment’s delay, take such steps as will enable him to regain it.”
And at p 593 he referred to “the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested”.
Lord du Parcq expressed it starkly at p 598:
“… a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance.”
25. When Mr Hart told the appellant that the ground for his recall was a deterioration in his mental health, the Minister’s duty about what to explain to him at that first stage was in my view satisfied. It was an accurate summary of the ground. Deterioration in health is not the only permissible ground for recall. For example the commission of a crime or the breach of a condition would, if of “sufficient significance” (R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687, para 50, Toulson LJ), justify a recall. Just as in the Christie case the officers had to tell the respondent only that the ground of his arrest was the suspected larceny of the cloth, without any need to refer to the grounds for their suspicion, so there was no need at that stage for Mr Hart or anyone else to communicate to the appellant the grounds for considering that his mental health had deteriorated. In any event, had he wanted to understand those grounds, the appellant had only to recall his discussion with Mr Hart and Ms Weldon that morning when, as Mr Hart’s written note makes clear, they had ventilated their concerns with him. It was reasonable for the Department of Health, when introducing its guidelines, to have suggested both that, at the time of his recall, a restricted patient is likely to be under stress and probably not able to digest a detailed presentation of the reasons for it and that those, for example the police, deputed to effect the recall, often in an emergency, might well know little or nothing about the background to it. Equally the effect of the Minister’s immediate reference of the appellant’s case to the First-tier Tribunal was that the failure to have provided him with detailed reasons for the recall at that stage did not delay his recourse to that facility for seeking renewed discharge.
27. Inevitably I reach for the decision of the European Commission of Human Rights, and thereafter of the ECtHR, on facts closest to those of this appeal: X v United Kingdom (1982) 4 EHRR 188. The applicant, a restricted patient, challenged the Home Secretary’s recall of him in 1974 to a secure hospital following his conditional discharge, pursuant to the Mental Health Act 1959. Reporting in July 1980 to the ECtHR, the Commission concluded that his recall did not violate article 5(1) of the Convention. In relation to article 5(2), however, the Commission accepted at para 107 that:
“it may not be the role of police officers, who are charged with the sometimes delicate task of arresting a patient, to inform him of the detailed reasons of arrest or recall, as they are not qualified to assess the patient’s condition and his ability to understand the position. However, the responsibility of informing the patient or his representatives will, in such circumstances, fall on the medical officers concerned.”
Then in its report the Commission added - and this is the high point of the appellant’s submissions in this connection:
“Nevertheless this obligation has to be discharged promptly, ie at the latest on arrival at the hospital.”
In the event, in the light of an unresolved dispute between the applicant and the hospital as to what he had been told on arrival, the Commission concluded that a violation of article 5(2) had at any rate occurred seven weeks later when his solicitors’ request for reasons for the recall had been inadequately addressed on behalf of the Home Secretary.
28. Two points are worthy of note:
(1) Under section 66 of the Mental Health Act 1959, the power to discharge a restricted patient was vested solely in the Home Secretary and the role of a tribunal, namely the Mental Health Review Tribunal, was only advisory.
(2) By way of swift response to the Commission’s report (and as the ECtHR was informed when in 1981 it came to consider the Commission’s reference - see para 16 of its judgment), the Home Secretary issued advisory circulars about the stages at which recalled patients should be informed of the reasons for their recall, which closely parallel the circulars still operative today.
“66. … anyone entitled … to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the facts and legal authority relied on to deprive him of his liberty.”
Its conclusion was that, in that the complaint under para 2 was no more than an aspect of the complaint under para 4, there was no need to rule separately upon it.
30. In Fox, Campbell and Hartley v United Kingdom (1991) 13 EHRR 157 the ECtHR held that, in arresting the applicants in Northern Ireland on no more than a suspicion that they were terrorists, the UK authorities had deprived them of their liberty in violation of para 1 of article 5. But the court rejected their complaint under para 2. It explained the paragraph as follows:
“40. … This provision is an integral part of the scheme of protection afforded by article 5: by virtue of paragraph (2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed ‘promptly’ (in French: ‘dans le plus court délai’), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.”
“Where a conditionally discharged patient is to be recalled to hospital, a brief verbal explanation of the Secretary of State’s reasons for recall must be provided to the patient at the time of recall unless there are exceptional reasons why this is not possible, eg the patient is violent or too distressed.”
Were this guidance to be followed and were the warrant served upon the patient also to include a brief reason for the recall, the Minister’s obligations to provide an explanation for it at the time of his recall would be likely to be discharged.
F: QUESTIONS (4) and (5)
34. The starting point for consideration of the fourth question, namely the effect of the conceded breaches on the lawfulness of the appellant’s actual detention, is the decision of this court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245. The Home Secretary had, so the majority held, infringed the rights of two men in reaching a decision to detain them pending deportation by reference to unpublished criteria inconsistent with her published criteria. Also by a majority, the court decided that the infringement had rendered their actual detention unlawful. It was obvious that the criteria by reference to which the Home Secretary decided whether initially to detain the men, and thereafter whether to continue to detain them, bore in principle, ie at least theoretically, on the decision to detain them even though, as the court also proceeded to find, they would nevertheless have fallen to be detained by reference to the published criteria. Lord Dyson said:
“68. … It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain.”
Lady Hale said:
“207. … the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result - which is not the same as saying that the result would have been different had there been no breach.”
Lord Kerr added at para 248 that the breach had to have a “direct” bearing on the decision to detain.
35. Lord Kerr’s adjective took centre-stage in this court’s decision in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299, which swiftly followed the Lumba case. In breach of a rule and indeed by way of departure from her own policy the Home Secretary had failed on about 12 occasions in the course of less than two years to conduct a monthly review of whether the appellant should continue to be detained. By a majority the court held that her failures had rendered his detention unlawful. Lady Hale said at para 77 that the departure from policy was “so obvious and so persistent and so directly related to the decision to continue to detain that it was clearly ‘material’ in the Lumba sense”. Lord Kerr stressed at paras 83 and 88 that the public law error touched “directly” on the decision to detain.
36. The first of three decisions on the other side of the line is that of the House of Lords in R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41, [2002] 1 WLR 3131, and, following the appellant’s application to it, also of the ECtHR in Saadi v United Kingdom (2008) 47 EHRR 17. The reason why the appellant had been detained was to enable the determination of his claim for asylum to be subject to a fast-track procedure but for three days a different explanation for his detention was provided to him. The House of Lords held that the error did not affect the legality of his detention. The ECtHR held that, in informing him only after three days of the true reason for his detention, the Secretary of State had failed to inform him of it “promptly” and so had breached his right under article 5(2) of the Convention; but there was no suggestion that the breach had affected the validity of his detention.
37. The second of the decisions is that of the House of Lords in Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39, [2003] 1 WLR 1763. Police officers were statutorily entitled in limited circumstances to defer compliance with an arrested person’s request to see a solicitor but they were required as soon as practicable to tell him their reason for deferring it. It was held that their breach of the latter requirement did not make the appellant’s detention unlawful. Lord Millett at para 61 described his claim to that effect as “hopeless”.
38. The third of the decisions is that of this court in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344. The court held that the Secretary of State had breached the rights of prisoners, implied by article 5 of the Convention, to be given access to programmes which might enable them to demonstrate to the Parole Board that they no longer represented an unacceptable danger to the public. Lord Mance and Lord Hughes considered that the implied rights were analogous to rights under article 5(4). They stated - unequivocally - at para 37 that a breach of article 5(4) did “not directly impact on the lawfulness of detention”; and they held at para 38 that, likewise, breach of the implied rights did not affect the lawfulness of the prisoners’ detention.
G: QUESTION (6)
44. But the Minister’s concession is also of a breach of the appellant’s right under article 5(2) of the Convention. Thus the claim for damages must be appraised also through the prism of section 8 of the Human Rights Act 1998 which in particular requires the court, by subsection (3), to make an award of damages for the breach only if it “is necessary to afford just satisfaction” to the appellant and, by subsection (4), to take into account the principles applied by the ECtHR in relation to the award of compensation under article 41 of the Convention. In R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, Lord Bingham of Cornhill stressed at paras 4 and 9 that the focus of the Convention was upon securing the observance of minimum standards in the protection of human rights and that compensation to the victim of a breach was of secondary, if any, importance to it. Before the House, however, was a violation of article 6; and, having referred to the specific provision under article 5(5) for compensation for violation of any of the earlier paragraphs of that article, Lord Bingham stressed in para 7 the risk of error if the decisions of the ECtHR in relation to one article were read across so as to apply to another.
45. In R (Faulkner) v Secretary of State for Justice and R (Sturnham) v Parole Board [2013] UKSC 23 and 47, [2013] 2 AC 254, the rights of two prisoners under article 5(4) to a speedy review of their continued detention by the Parole Board had been breached. In the first case the wrongful delay was about ten months and in the second it was about six months. In the first case this court reduced the award of damages to £6,500 and in the second it restored an award of £300. In explaining the court’s decisions Lord Reed conducted a masterly exposition of the approach of the ECtHR to damages for violations of article 5(4). Having observed at para 53 that the ECtHR was prepared, without direct proof, to presume harm in the form of feelings of frustration and anxiety and in answer to his question “is there a de minimis principle?”, he concluded that:
“66. … a delay [in the conduct of the requisite review] of three months or more is likely to merit an award, whereas the stress and anxiety which can be inferred from a delay of shorter duration are unlikely to be of sufficient severity.”
H: DISPOSAL
47. I therefore propose that the appeal should be dismissed.
LORD REED: