B e f o r e :
THE HONOURABLE MR JUSTICE WYN WILLIAMS
____________________
Between:
|
THE QUEEN ON THE APPLICATION OF DAVID GRANT JUNCAL
|
Claimant
|
|
- and -
|
|
|
(1) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) EAST LONDON AND THE CITY MENTAL HEATH NHS TRUST (3) THE SCOTTISH MINISTERS (4) THE SECRETARY OF STATE FOR NORTHERN IRELAND
|
Defendants
|
____________________
(Transcript
of
the Handed Down Judgment
of
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____________________
Mr Richard Gordon QC and Mr Denis Edwards
(instructed by Messrs Campbell-Taylor Solicitors) for the Claimant
Mr Martin Chamberlain (instructed by The Treasury Solicitors for the First, Third and Fourth Defendants and Messrs Bevan for the Second Defendant)
Hearing dates: 23 October 2007
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Mr Justice Wyn Williams : :
- On 16 December 1997 the Claimant appeared at the Crown Court in Belfast, Northern Ireland. He was charged with an offence
of
unlawful wounding, contrary to section 20
of
the Offences against the Person Act 1861. By that time at the latest, as I understand it, an issue had arisen as to whether or not the Claimant was fit to be tried. As
of
December 1997 the resolution
of
such an issue was governed by The Mental Health (Northern Ireland) Order 1986 (hereinafter referred to as "the Order") although, as I understand it, this provision has been substantially amended. By virtue
of
Article 49(4)
of
the Order the question
of
whether a person was fit to be tried was to be determined by a jury.
- It is common ground in these proceedings that a finding was made in the criminal proceedings that the Claimant was not fit to be tried. Although there is no transcript
of
the proceedings before the Belfast Crown Court it seems to me to be the inevitable inference that the determination that the Claimant was unfit to be tried was made by a jury.
- Article 49
of
the Order also made provision for what was to occur once a finding
of
unfitness had been made.
"(5) Where in accordance with paragraphs (2) to (4) it is determined that the accused is unfit to be tried
(a) the court shall direct a finding to that effect to be recorded; and
(b) the trial shall not proceed or, as the case may be, proceed further.
(6) Where a court has directed that a finding be recorded in pursuance
of
paragraph 5(a), the court shall order that the person to whom the finding relates shall be admitted to hospital.
(7) An order under paragraph (6) shall have the same effect as a hospital order together with a restriction order made without limitation
of
time.
(8) Where the Secretary
of
State is notified by the responsible medical officer that a person detained in a hospital by virtue
of
an order under paragraph (6) no longer requires treatment for mental disorder, the Secretary
of
State may remit that person to prison or to a remand centre or remand home for trial by the Crown Court at the place where, but for the order, he would have been tried, and on his arrival at the prison, remand centre or remand home the order under paragraph (6) shall cease to have effect."
- As I understand it, the Claimant was found to be unfit to be tried by reason
of
his unfitness to plead. That was permissible by virtue
of
Article 49(9).The Claimant was unfit to plead by virtue
of
mental illness. The order made by the Crown Court pursuant to Article 49(6)
of
the Order recites that the Claimant was suffering from the mental illness known as paranoid schizophrenia.
- I should say at the outset that the order made by the Crown Court is not entirely consistent, in its form, with an order which would normally be made after a finding
of
unfitness to plead. That said, in my judgment, there can be little doubt but that the Claimant was found to be unfit to plead and that the order drawn by the Court was intended to reflect that fact and the consequences which followed it pursuant to Article 49
of
the Order.
- Since 16 December 1997 the Claimant has been detained within hospitals. I will set out the details and the relevant statutory provisions under which that was authorised in the next section
of
this judgment.
- In the Claim Form issued in these proceedings the Claimant challenges the lawfulness
of
his current and continuing detention. At the hearing before me, however, detailed submissions were addressed to me upon the issue
of
whether or not the Claimant's detention has been lawful from its inception.
- There is one further provision
of
the Order which I should mention. Article 49(3) is in the following terms:-
"(3) If, having regard to the nature
of
the supposed mental condition
of
the accused, the court is
of
opinion that it is expedient so to do and in the interests
of
the accused, the court may
(a) postpone consideration
of
the question
of
fitness to be tried until any time up to the opening
of
the case for the defence; and
(b) if, before the said question falls to be determined, the jury returns a verdict
of
acquittal on the count or each
of
the counts on which the accused is being tried, that question shall not be determined."
THE HISTORY
OF
THE CLAIMANT'S DETENTION AND THE RELEVANT STATUTORY PROVISIONS
- Following the making
of
the order on 16 December 1997 the Claimant was detained for a short period
of
time within Northern Ireland. On 30 December 1997 an order was made authorising the Claimant's removal to Scotland. The order was made pursuant to section 81
of
the Mental Health (Scotland) Act 1984. It is unnecessary to recite the provisions
of
that section in full. It is sufficient to record that the power conferred by section 81 was exercisable only if it was established to the satisfaction
of
the Secretary
of
State for Northern Ireland that it was "in the interests
of
the patient to remove him to Scotland, and that arrangements had been made for admitting him to a hospital
.."
- On 8 January 1998 the Claimant was admitted to the State Hospital in Carstairs, South Lanarkshire. Following his admission at that hospital a substantial medical report was prepared upon him by Dr Colin Gray, a consultant forensic psychiatrist. That report is dated 4 February 1998 and I will return to some
of
its contents in due course.
- The Claimant remained at the State Hospital from 8 January 1998 to 14 June 2005. On that second date the Claimant was transferred from that hospital to the John Howard Centre, Hackney London. He was so transferred pursuant to the powers contained within section 77 Mental Health (Scotland) Act 1984 which, in summary, permitted the removal
of
a patient detained in Scotland to England and Wales. Again, such removal was permitted only if it was established to the satisfaction
of
the Scottish Ministers, who had inherited this function
of
the Secretary
of
State for Scotland "in the interests
of
the patient to remove him to England and Wales." As I understand it, the Claimant remains detained at the John Howard Centre.
- As I have indicated, the Claimant was transferred from Northern Ireland to Scotland pursuant to the power contained within section 81(1)
of
the Mental Health (Scotland) Act 1984. Section 81(2)
of
that Act is in the following terms:-
"
where a patient who is liable to be detained under this Act by virtue
of
an application, order, or direction under any enactment in force in Northern Ireland is removed under this section and admitted to a hospital in Scotland, he shall be treated as if on the date
of
his admission he had been so admitted in pursuance
of
an application forwarded to the managers
of
the hospital, or an order or direction made or given, on that date under the corresponding enactment in force in Scotland
"
- For all practical purposes, an identical provision exists in section 77(2)
of
the 1984 Act in relation to the Claimant's removal from Scotland to England and Wales.
- In 1998, the only possible "corresponding" enactment in force in Scotland was section 57
of
the Criminal Procedure (Scotland) Act 1995. In 2005 the only "corresponding" enactment in England and Wales to section 57
of
the Criminal Procedure (Scotland) Act 1995 was the Criminal Procedure (Insanity) Act 1964 (as amended).
- The Criminal Procedure (Scotland) Act 1995 is materially different to the Order. As is apparent from what has been set out above the Order required only an investigation into whether or not the Claimant was unfit to be tried. Once such a finding was made a hospital order followed. By virtue
of
section 54
of
the Criminal Procedure (Scotland) Act 1995, however, before a hospital order could be made in Scotland it was necessary not to just to establish whether the Claimant was fit to be tried but also whether he had carried out the acts or made the omissions which were the substance
of
the offence with which he was charged. Under the Scottish legislation this was categorised as "examining the facts".
- By the time
of
his transfer to England the Criminal Procedure (Insanity) Act 1964 as amended also made it mandatory that the relevant act or omission be proved for a hospital order to be made.
- It can be seen from the foregoing that there appears to be a chain
of
statutory provisions and orders made thereunder which have authorised the Claimant's detention in the various hospitals where he has been detained between 16 December 1997 and the present.
THE PROCEEDINGS AT THE BELFAST CROWN COURT
- As I indicated above no transcript
of
these proceedings was provided to me. The Claimant's own recollection is that the hearing
of
the Belfast Crown Court which he attended and when the hospital order was made lasted no more than about five minutes. As I understand it those are the instructions which the Claimant has always provided to his current solicitor. It may very well be that if all that happened on the last appearance at the Crown Court was that the Judge made the hospital order that would be correct. As I have indicated earlier in this judgment once a finding
of
unfitness to plead had been made the making
of
a hospital order was mandatory.
- It seems to me, however, that it is most unlikely that the process
of
determining whether or not the Claimant was fit to be tried was undertaken within a space
of
about five minutes. The process
of
empanelling a jury would normally take a few minutes itself. The jury must have been provided with sufficient evidence to justify a conclusion that the Claimant was not fit to be tried. Realistically, that evidence was bound to be detailed medical evidence.
- It seems to me that the most reliable indicator
of
the medical investigations which were undertaken into the state
of
the Claimant's mental health prior to the making
of
the hospital order are those which are described on pages 1 and 2
of
the medical report prepared by Dr Gray shortly after the Claimant's admission to the State Hospital at Carstairs. Despite the submission made on behalf
of
the Claimant by Mr Gordon QC, it does seem to me that I can properly treat the history recorded by Dr Gray as being accurate so far as it relates to medical investigation.
- Dr Gray's report details that the Claimant was remanded in custody on 12 March 1997 following the incident giving rise to the alleged criminal offence. On 19 May 1997 the Claimant was admitted to the psychiatric unit
of
the prison at which he was held. Such admission was for urgent psychiatric assessment. In June 1997, the Claimant was taken to the State Hospital in Scotland for assessment and possible transfer and at that early stage it was agreed by Dr Gray that his admission to the State Hospital was appropriate.
- Later that summer, Dr Gray apparently carried out a further assessment and in October 1997 an assessment was undertaken by another forensic psychiatrist. In the report
of
Dr. Gray that consultant is named as Dr Bownes. It was Dr Bownes, probably, who first raised the issue, squarely,
of
whether the Claimant was fit to be tried on the charge which he was facing.
- Dr Gray also records that the Claimant was assessed by a Dr Flemming on behalf
of
the Director
of
Public Prosecutions.
- On the face
of
the order made at the Belfast Crown Court it is recorded that the Court was satisfied that the Claimant was suffering from mental illness having heard oral evidence from Dr Brian Fleming and Dr Federick William Arthur Brown.
- It seems to me to be highly likely that the persons Fleming and Brown referred to in the order itself are the same doctors as the persons referred to in Dr Gray's report, namely Flemming and Bownes. It also seems to me to be highly likely that the Court in Belfast did receive oral evidence from two doctors suitably qualified to form an opinion upon whether or not the Claimant was fit to be tried. I say that for two reasons. Firstly,
of
course, the order
of
the court recites that that is what occurred. Secondly, although the Order is silent about how a Court should set about the task
of
ascertaining whether or not a person is fit to be tried, common sense dictates that the Court could only reach an appropriate conclusion after receiving relevant medical evidence.
- I accept that the state
of
the evidence as to what occurred at the Belfast Crown Court is less than completely satisfactory. Nonetheless I have reached the clear conclusion that the probability is that the issue
of
the Claimant's fitness to be tried was determined by a jury after they first heard evidence from two consultant psychiatrists who were qualified to offer appropriate opinions.
- As I have said. Mr Gordon QC, on behalf
of
the Claimant, was not prepared to accept those conclusions. Essentially, his point was that I should not act upon the medical report
of
Dr Gray. However, it seems to me that it is not just the medical report
of
Dr Gray which points to the conclusions I have reached. The conclusions are also supported by the mandatory requirements
of
Article 49 and the terms
of
the order made by the Court.
- All that said, there is no dispute between the parties about the fact that there was no investigation by the Court
of
the facts upon which the criminal charge was based and no finding that the Claimant had carried out the alleged acts forming the substance
of
the charge. It is the failure to investigate the facts upon which the charge was based and the failure
of
the Court to determine whether the Claimant had carried out the relevant acts which lie at the heart
of
this challenge.
THE MAKING
OF
THE MENTAL HEALTH (NI) ORDER 1986
- It is common ground between the parties that the Order was made in consequence
of
the powers conferred under the Northern Ireland Act 1974. Section 1
of
the 1974 Act provides:-
"1(1) Her Majesty may by Order in Council dissolve the Assembly elected under the Northern Ireland Assembly Act 1973
..
(2)
..
(3) The provisions
of
Schedule 1 to this Act shall have effect with respect to the exercise
of
legislative, executive and other functions in relation to Northern Ireland during the interim period specified by or under sub-section (4) below.
(4) The interim period shall be the period
of
one year beginning with the passing
of
this Act but the Secretary
of
State may by order direct that it shall continue until a date after, or end on a date earlier than, the date on which it will otherwise expire (whether by virtue
of
this sub-section or
of
a previous order thereunder)."
The relevant parts
of
Schedule 1 read:-
"1.- (1) During the interim period
(a) no Measure shall be passed by the Assembly;
(b) Her Majesty may by Order in Council make laws for Northern Ireland and, in particular, provision for any matter which the Constitution Act authorises or requires provision to be made by Measure.
(2)
.
(3)
(4) No recommendation shall be made to Her Majesty to make an Order in Council under this paragraph unless either
(a) a draft
of
the Order has been approved by resolution
of
each House
of
Parliament;
(5) Any Order in Council under this paragraph, other than an Order
of
which a draft has been approved resolution
of
each House
of
Parliament, shall be laid before Parliament after being made and, if at the end
of
the period
of
forty days after the date on which it is made the Order has not been approved by resolution
of
each House, shall then cease to have effect (but without prejudice to anything previously done under the Order or to the making
of
a new Order)."
- It is not suggested that the Order was not made in accordance with the terms
of
Schedule 1 to the 1974 Act.
- Notwithstanding the fact that the draft
of
the Order had to be approved by resolution
of
each House
of
Parliament before a recommendation was made to Her Majesty to make the Order, the Order itself constitutes subordinate legislation. Again, as I understand it, there is no dispute between the parties on that point.
DISCUSSION
- In this case there exist detailed Grounds in support
of
the claim for judicial review, detailed Summary Grounds
of
Resistance on behalf
of
all the Defendants, a Skeleton Argument and Supplemental Outline Submissions on behalf
of
the Claimant and a Skeleton Argument and Note on behalf
of
the Defendants. As Mr Gordon QC, for the Claimant and Mr Chamberlain for the Defendants observe, as these documents have evolved in the course
of
these proceedings there have been shifts in the emphasis which each party has placed upon some
of
the points which arise in the case. I do not say that critically. In all probability this was inevitable in a case
of
this type. I mention it at the outset
of
this section
of
my judgment, however, simply as a prelude to explaining that I propose to deal with the rival submissions
of
the parties very much on the basis that they were presented to me final form. In other
words
I shall treat the oral submissions
of
Mr Gordon QC and Mr Chamberlain together with their references to their own written material at the hearing as being the basis for their respective cases.
- At the forefront
of
the case for the Claimant is the submission
of
Mr Gordon QC that the procedure adopted at the Belfast Crown Court at the time when the order was made was such that it resulted in the arbitrary detention
of
the Claimant. Mr Gordon QC submits that this is self evidently so; he makes that submission on the basis that it is common ground that no investigation occurred as to whether or not the Claimant had committed the acts which founded the criminal charge which had brought him before the Court. The mere fact that the Claimant was unfit to be tried could not,
of
itself, justify his compulsory admission to hospital, submits Mr. Gordon QC, and the fact that the Claimant's medical condition may have been such so as to justify his admission in exercise
of
different powers was irrelevant.
- Mr Gordon QC recognises that it was open to Parliament in 1986 to enact primary legislation which was identical in form to the 1986 Order. Primary legislation in the form
of
the Order would have been lawful even if it did authorise arbitrary detention at hospital. However, Mr Gordon QC submits that the Order was subordinate legislation and that as a matter
of interpretation
the enabling legislation cannot have been intended to authorise arbitrary detention. In making that submission Mr Gordon QC invokes the
rule of interpretation
known as the principle
of
legality.
- If, submits Mr Gordon QC, the Order was outwith the power conferred by the enabling Act it was unlawful. On that basis, the Claimant's detention has been unlawful since its inception.
- I agree with Mr Gordon QC that the starting point for any determination upon the legality
of
the Claimant's detention at hospital since December 1997 is whether or not the order made at the Belfast Crown Court was lawful. That, in turn, demands an investigation
of
whether or not the Order was itself unlawful. The starting point for that investigation is the terms
of
the 1974 Act.
- It is trite law that the object
of
construing or interpreting an Act is to ascertain the intention
of
Parliament, as expressed in the Act, considering it as a whole and in its context. The context
of
the 1974 Act is, in my judgment, as follows. In 1973 a statute had been passed (the Northern Ireland Assembly Act 1973) which provided for the creation
of
an Assembly in Northern Ireland which was to have, inter alia, significant legislative powers. The 1973 Act was passed against the background
of
conflict then existing in Northern Ireland and it was hoped that the creation
of
the Assembly would be a measure which would have the effect
of
removing or at least reducing such conflict. It quickly became clear that the Assembly could not be made to work. Accordingly, the Northern Ireland Act 1974 was passed so as to provide a mechanism for dissolving the Assembly. It also made provision for one
of
the ways in which laws might be made for Northern Ireland i.e. by the making
of
subordinate legislation in accordance with the provisions
of
Schedule 1. Those provisions were intended to apply in what was described as an interim period" and, no doubt, it was not anticipated in 1974 that the "interim period" would continue for very many years.
- The law making power conferred by Paragraph 1
of
Schedule 1 is a power "to make laws for Northern Ireland. Neither Counsel suggested that the phrase which followed that provision has any particular significance to the resolution
of
this case. Accordingly the key phrase in the enabling Act, as it seems to me, is the phrase "make laws for Northern Ireland". On its face, as Mr Chamberlain submits, paragraph 1 confers about as
general
a power as one could imagine. At first blush, the
words
are certainly wide enough to authorise the making
of
the Order.
- However, as I have said, Mr Gordon QC relies upon a
rule of interpretation
the principle
of
legality in order to seek to persuade me that properly interpreted the 1974 Act did not authorise the making
of
that part
of
the Order which permitted the Claimant to be detained at hospital notwithstanding that there had been no investigation
of
the facts which were alleged to constitute the criminal offence with which he had been charged. I say that deliberately since it was not Mr. Gordon's contention, as I understand it, that the 1974 Act did not authorise the making
of
many parts
of
the Order albeit some
of
them related to the detention at hospital
of
persons who were mentally ill.
- What then is the ambit
of
the principle
of
legality? In R v The Lord Chancellor (ex parte Witham) [1998] QB 575 the Divisional Court
of
the Queen's Bench Division had to consider whether subordinate legislation made by the Lord Chancellor, namely Article 3
of
the Supreme Court Fees (Amendment) Order 1996, was ultra vires Section 130
of
the Supreme Court Act 1981 and, therefore, unlawful. Article 3 removed from litigants in person in receipt
of
income support their exemption from paying certain fees in respect
of
court proceedings e.g. the fee payable upon the issue
of
a writ. Section 130
of
the Supreme Court Act 1981 is in the following terms:-
"(1) The Lord Chancellor may by Order under this section prescribe the fees to be taken in the Supreme Court, other than fees which he or some other authority has the power to prescribe apart from this section.
(2) The concurrence
of
the Treasury shall be required for the making
of
any Order under this section; and in addition (a) the concurrence
of
the Lord Chief Justice, The Master
of
the Rolls, the President
of
the Family Division and the Vice-Chancellor or
of
any three
of
them shall be required for the making
of
any such order not relating exclusively to fees to be taken in connection with proceedings in the Crown Court
(4) Any order under this section shall be made by statutory instrument, which shall be laid before Parliament after being made."
The argument before the Divisional Court did not suggest that the order in question lacked any
of
the necessary formalities. The principal contention before the Court was that there were implied limitations upon the Lord Chancellor's power in the sense that section 130 did not permit him to exercise his power in such a way as to deprive the citizen
of
his constitutional right
of
access to the Court.
During the course
of
his judgment Laws J (as he then was) said this: -
"The common law does not generally speak in the language
of
constitutional rights, for the good reason that in the absence
of
any sovereign text, a written constitution which is logically and legally prior to the power
of
legislature, executive and judiciary alike, there is on the face
of
it no hierarchy
of
rights such that any one
of
them is more entrenched by the law than any other. And if the concept
of
a constitutional right is to have any meaning, it must surely be found in the protection which the law affords to it. Where a written constitution guarantees a right, there is no conceptual difficulty. The state authorities must give way to it, save to the extent that the constitution allows them to deny it. There may
of
course be other difficulties, such as whether on the constitution's true
interpretation
the right claimed exists at all. Even a superficial acquaintance with the jurisprudence
of
the Supreme Court in United States shows that such problems may be acute. But they are not in the same category as the question: Do we have constitutional rights at all?
In the unwritten legal order
of
the British state, at a time when the common law continues to accord legislative supremacy to Parliament, the notion
of
a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act
of
Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate.
General words
will not suffice. And any such rights will be creatures
of
the common law, since their existence would not be the consequence
of
the democratic political process but would be logically prior to it. I shall explain in due course what I mean by a requirement
of
specific provision, a concept more elusive than it seems."
After reviewing many authorities and the submissions
of
Counsel before him upon them Laws J continued: -
"It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen's right
of
access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right
of
access to justice, unless it is specifically so permitted by Parliament; and this is the meaning
of
the constitutional right. But I must explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permission expressly; in that case it would provide in terms that in defined circumstances the citizen may not enter the court door. In Ex Parte Leech [1994] QB 198 the Court
of
Appeal accepted, as in its view the ratio
of
their lordships' decision in Raymond v Honey [1983] 1.A.C.1 vouchsafed, that it could also be done by necessary implication. However for my part I find great difficulty in conceiving a form
of words
capable
of
making it plain beyond doubt to the statute's reader that the provision in question prevents him from going to court (for that is what would be required), save in a case where that is expressly stated. The class
of
cases where it could be done by necessary implication is, I venture to think, a class with no members."
Rose LJ expressly agreed with the judgment
of
Laws J and the Court granted a declaration that Article 3 was beyond the power conferred on the Lord Chancellor by section 130
of
the Supreme Court Act 1981 on the ground that its effect would deny the [applicant] a constitutional right
of
access to the court.
- In R v Secretary
of
State for the Home Department ex parte Simms and another [2000] 2A.C. 115 two prisoners serving life sentences for murder had their separate applications for leave to appeal against conviction refused. The men continued to protest their innocence. In order to obtain the re-opening
of
their cases they wished to engage in oral interviews with a journalist who would take interest in their cases. Relying on the policy
of
the Home Secretary the governors
of
the prisons were only prepared to allow the oral interviews to take place if the journalist signed written undertakings not to publish any part
of
the interviews. The journalists refused to sign the undertakings. The prisoners sought judicial review
of
the decisions denying them the right to have oral interviews. They relied on the right to free speech not in any
general
way but restricted to a very specific context: they argued that only if they were allowed to have oral interviews in prison with the journalist would they be able to have the safety
of
their convictions further investigated. In effect they sought to enlist the investigative services
of
journalists as a way to gain access to justice. Latham J upheld their argument and held the policy
of
the Home Secretary to be unlawful. The Court
of
Appeal allowed an appeal by the Home Secretary reversing the decision
of
Latham J. The Court
of
Appeal in effect ruled that the prisoner had no right to an oral interview (as opposed to correspondence) with a journalist who is willing to investigate his case. The House
of
Lords allowed their appeal.
- During the course
of
his speech Lord Hoffmann gave this exposition
of
the principle
of
legality.
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles
of
human rights. The Human Right Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal but the principle
of
legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overwritten by
general
or ambiguous
words
. This is because there is too great a risk that the full implications
of
their unqualified meaning may have passed unnoticed in a democratic process. In the absence
of
express language or necessary implication to the contrary, the Courts therefore presume that even the most
general words
were intended to be subject to the basic rights
of
the individuals. In this way the courts in the United Kingdom, though acknowledging the sovereignty
of
Parliament, apply principles
of
constitutionality little different from those which exist in countries where the power
of
the legislature is expressly limited by constitutional document."
- It seems to me that the following principles can be distilled from the judgments in ex parte Witham and ex parte Sims. Firstly, the law recognises that the citizens
of
the United Kingdom enjoy constitutional or fundamental rights by virtue
of
the common law. Secondly, it is open to Parliament to legislate in such a way so as to derogate from or remove those rights. Thirdly, however, such derogation or removal cannot be achieved by
general
or ambiguous
words
; such objectives can only be achieved by express language or by necessary implication. I appreciate that in ex parte Witham the Divisional Court appears to have ruled out the practical possibility
of
constitutional or fundamental rights being removed by necessary implication but, in my judgment, it is clear from the speech
of
Lord Hoffmann in ex parte Sims that as a matter
of
principle such rights can be removed by necessary implication.
- It seems to me to be an inevitable conclusion in the instant case that the
general words of
the 1974 Act would not,
of
themselves, permit the making
of
subordinate legislation which had the effect
of
removing a constitutional or fundamental right from a citizen
of
the UK. That leaves these two questions for resolution. Did Article 49
of
the 1986 Order remove from this Claimant and all others in his position a fundamental or constitutional right? If so was that authorised by some necessary implication?
- Mr Chamberlain submits that considerable care is necessary when seeking to formulate the constitutional or fundamental right allegedly removed by paragraph 49
of
the Order. He submits that it is not sufficient to speak in terms such that there is a
general
principle or presumption in favour
of
the liberty
of
the subject. He submits that the Claimant needs to show that there was in 1974 or at the latest in 1986 an established common law principle to the effect that where a person is found unfit to plead to a criminal charge laid against him there must be an investigation into whether he did the acts or made the omissions necessary for the offence charged before the imposition
of
any kind
of
order which has the effect
of
depriving him
of
his liberty.
- Mr Gordon QC does not agree. His submission is that there is an established common law right
of
freedom from arbitrary detention and, as I have already described, Mr Gordon QC submits that the Claimant was subject to arbitrary detention by virtue
of
the provisions in paragraph 49
of
the Order.
- In my judgment the citizens
of
this country do enjoy a fundamental or constitutional right not to be detained arbitrarily at common law. That conclusion is not capable
of
much elaboration. It seems to me, however, that the opposite conclusion is simply not tenable. The real issue, in my judgment, is whether or not paragraph 49
of
the Order authorised arbitrary detention.
- The
word
arbitrary is capable
of
a number
of
connected but different meanings. It can certainly mean capricious; it also means despotic and it can also be properly used to describe an action which is based upon or derived from uninformed opinion or random choice. In his written Skeleton Argument Mr. Chamberlain advances other possibilities based upon dictionary definitions. The meaning to be given to the
word
arbitrary, however, is sufficiently encapsulated by the alternatives set out above.
- In my judgment Article 49
of
the Order did not authorise anything which was capricious, despotic or based upon random choice. Further, I do not consider that it authorised an action which was based upon uninformed opinion. Clearly, the Article did not provide for an investigation
of
whether the person concerned had committed the acts or made the omissions which founded the criminal charge which he faced but, in my judgment, that,
of
itself, does not mean that the detention was authorised upon uninformed opinion. The Order laid down two circumstances which had to be satisfied before detention could be ordered. The circumstances were that the person in question was charged with a criminal offence which was triable upon indictment and that he was unfit to be tried upon that indictment. The Court had to properly inform itself and be satisfied that those criteria were met before an order could be made for detention at hospital.
- Article 49(3) is also, in my judgment, important in the context
of
deciding whether or not the Article, as a whole, authorised arbitrary detention. Article 49(3)(a) allowed the court to postpone the issue
of
unfitness to be tried to any point in time until the beginning
of
the case for the defence. That is a power which the Court could and, no doubt, would invoke if it appeared to the court that the case for the prosecution was very weak and that there was a real prospect that at the close
of
the prosecution's case there would be a directed verdict
of
not guilty. In my judgment this was a significant safeguard. In summary, it enabled a judge to protect the accused person from the mandatory order which would follow upon the finding that he was unfit to be tried in a case where he was likely to be acquitted
of
any offence at all.
- I am conscious that the
word
arbitrary has been considered in the context
of
the European Convention for the Protection
of
Human Rights and Fundamental Freedoms. The European Court
of
Human Rights has long since held that detention under Article 5
of
the Convention which is arbitrary is also unlawful. In Winterwerp v The Netherlands [1979] 2EHRR 387 the European Court considered whether or not detention was arbitrary in the context
of
Dutch legislation authorising the detention
of
persons
of
unsound mind. The Court confirmed that detention would be unlawful if arbitrary even if the detention conformed to the relevant domestic law. In paragraph 39
of
its judgment the Court said:
"The Commission likewise stresses that there must be no element
of
arbitrariness; the conclusion it draws is that no one may be confined as 'a person
of
unsound mind' in the absence
of
medical evidence establishing that his mental state is such as to justify compulsory hospitalisation
The applicant and the Government both expressed similar opinions.
The Court fully agrees with this line
of
reasoning. In the Court's opinion, except in emergency cases, the individual concerned should not be deprived
of
his liberty unless he has been reliably shown to be
of
'unsound mind'. The very nature
of
what has to be established before the competent national authority that is, a true mental disorder calls for objective medical expertise. Further the mental disorder must be
of
a kind or degree warranting compulsory confinement. What is more, the validity
of
continued confinement depends upon the persistence
of
such a disorder."
- It seems to me that Winterwerp is authority from the European Court
of
Human Rights for the proposition that detention under Article 5 will not be unlawful if at the time the order for detention is made the person detained is proved on objective medical expertise to suffer from a true mental disorder and that the disorder is
of
such a kind or degree to warrant compulsory confinement.
- In the instant case, as I have said, I have not been provided with a transcript
of
the evidence which was before the Belfast Crown Court. However, as I have already pointed out the order made by the Court recites that the Claimant was suffering from mental illness. Further the Claimant was examined by Dr Gray within weeks
of
his admission to the State Hospital and Dr Gray expressed the following opinion: -
"Considering the history acquired through previous psychiatric reports and the above mental state examination, I consider this young man to be suffering from chronic paranoid schizophrenia which is most likely complicating underlying personality difficulties. Although his illness has responded to neuroleptic medication I expect subsequent mental state examination during his stay within Lomond ward to reveal evidence
of
both acute psychotic illness and fixed delusional beliefs."
It seems clear, in my judgment, that the Court at Belfast was fully entitled to reach the conclusion that the Claimant was suffering an identifiable mental illness.
- In Winterwerp,
of
course, the European Court also stressed the need to establish that the mental disorder was
of
a kind or degree which warranted compulsory confinement.
- I appreciate that the question to be asked at the Belfast Crown Court was whether the Claimant was fit to be tried. A person may, at least possibly, be unfit to be tried through mental illness but yet be in such a state that his compulsory hospitalisation is not warranted. In this case, however, it is clear from Dr Gray's report that the Claimant's compulsory hospitalisation was justified. In my judgment no other
interpretation of
the report, when read as a whole, is tenable.
- As I have said, it is at least possible that a person might be unfit to be tried yet his state
of
mental health may be such that it is unnecessary to detain him at hospital. To that extent the procedure under the Order might in appropriate factual circumstances lead to a conclusion that detention is unlawful and arbitrary under Article 5
of
the European Convention. In my judgment, however, that will arise only if on objective medical evidence the need for detention at hospital is not made out. In this case, however, there was no factual basis upon which such a conclusion could have been justified on the material available in 1997. The probability is that the medical evidence before the Belfast Crown Court demonstrated quite clearly that the Claimant was both mentally ill and that his illness was such that his detention at hospital was justified.
- Although I am content to hold that Mr Gordon QC is correct in his formulation
of
the common law or constitutional right I am nonetheless not persuaded that the provisions
of
Article 49 Order infringe it.
- In reaching this conclusion I have also borne in mind that Parliament had enacted laws to permit for the detention at hospital
of
persons charged with criminal offences triable upon indictment but who were found to be unfit to be tried long before the making
of
this Order. In 1964 Parliament passed the Criminal Procedure (Insanity) Act and in the form in which it was first enacted section 4
of
that Act was in very similar terms to Article 49 (1) to (5)
of
the Order. Further, as with the Order, so the 1964 Act provided that upon a finding that a person was unfit to plead the Court had no option but to make an Order detaining that person at hospital. The 1964 Act applied to England and Wales. I was told during the course
of
argument that similar legislation existed for Scotland. At the time when the Order was made the English and Scottish statutes had not been amended to allow for an enquiry into whether or not an accused person had committed the acts or omissions upon which the criminal charge was founded.
- The logic
of
the argument for the Claimant is that the Criminal Procedure (Insanity) Act 1964 and its Scottish equivalent authorised arbitrary detention until their amendment. On the Claimant's analysis that would have been lawful because the Act and its Scottish equivalent were primary legislation and expressed in
words
which were clear and unequivocal. Nonetheless, to repeat, the logic
of
the Claimant's arguments is that the 1964 Act in England and Wales and the Scottish enactment were examples
of
Parliament deliberately removing an established common law or constitutional right from a class
of
its citizens in England, Wales and Scotland and replacing that right with provisions which mandated the courts
of
those countries to impose arbitrary detention upon that class.
- In my judgment that is not correct. Parliament did not in those two statutes authorise anything that was arbitrary. I have sought to explain why in the preceding paragraphs. It obviously follows that when Parliament made the Order in 1986 it did not create subordinate legislation which authorised arbitrary detention at hospital.
- That being my view, the issue
of
whether or not arbitrary detention had been authorised by necessary implication does not arise. I simply say that I am not persuaded by anything said in this case that there would be any justification for holding that Parliament had impliedly authorised arbitrary detention save in the most exceptional circumstances. In the context
of
this judgment I need not and do not seek to anticipate what exceptional circumstances might arise which would justify such an implication
- In my judgment when the Claimant was made the subject
of
the order at Belfast Crown Court on 16 December 1997 he was made the subject
of
a lawful order.
- I am completely satisfied that his subsequent transfers were also lawful in terms
of
the legislation which authorised it. The key
word
in the Criminal Procedure (Scotland) Act 1995 (the statute which authorised the Claimant's transfers) is "corresponding." I see no reason to interpret that
word
in the way which Mr Gordon QC invites me so to do namely by giving it the meaning "exactly corresponding". In my judgment the natural meaning
of
the
word
corresponding is its dictionary definition, namely "similar or analogous in character or function" and, in my judgment, the chain
of
statutory provisions set out earlier were indeed corresponding in that sense. As Mr Chamberlain points out the transfer
of
the Claimant was predicated upon the fact that it was for his benefit. In my judgment it would be wholly erroneous to construe a statute which is intended to benefit a patient in a way that would deprive the patient
of
the intended benefit.
- Accordingly, in my judgment, the Claimant's detention at hospital throughout his period
of
detention has been lawfully authorised by relevant domestic legislation subject only to any impact which the Human Rights Act 1998 may have.
- It is to that issue to which I now turn. The Human Rights Act 1998 came into force on 2 October 2000. It incorporated into the domestic law
of
the United Kingdom the rights afforded by the European Convention. Section 6
of
the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. In this case Mr Gordon QC submits that the Defendants have acted in a way which has breached a number
of
the rights afforded to the Claimant by the Convention (Articles 5, 6, 7, 8 and 14) but, understandably his primary submission is that the Defendants have breached Article 5.
- The relevant parts
of
Article 5 read as follows:-
"everyone has a 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:
(a)
(b)
.
(c)
..
(d)
..
(e) the lawful detention
of
persons for the prevention
of
the spreading
of
infectious diseases,
of
persons
of
unsound mind, alcoholics or drugs addicts or vagrants."
Mr Gordon submits that although Article 5 envisages a person may be detained if he is "
of
unsound mind" in this case the detention was, nonetheless, unlawful. He makes that submission, as I understand it, independently
of
his contention that the Claimant was the victim
of
arbitrary detention prohibited at common law. Whether or not the Claimant's detention was arbitrary at common law, submits Mr Gordon QC, his detention was not lawful when one considers it in the context
of
the European Convention.
- Mr Chamberlain submits that there is an insurmountable difficulty with the proposition that I should declare the Claimant's detention to be unlawful in the context
of
Article 5. He submits that that is so because the Human Rights Act 1998 provides no remedy in respect
of
an event which occurred before the coming into force
of
the Act. Mr Chamberlain submits that since the Claimant was ordered to be detained on 16 December 1997 the Human Rights Act 1998 and the Convention rights incorporated into our law in consequence have no part to play in this case.
- In support
of
his submission Mr Chamberlain relies upon a number
of
cases
of
the highest authority. Specifically, he relies upon the decisions in the House
of
Lords: R v Lambert [2002] 2AC 545; R v Kansal (no.2) [2002] 2AC 69; In Re McKerr [2004] 1 WLR 807 and R (Hurst) v London Northern District Coroner [2007] 2 WLR 726.
- In the context
of
a comparatively long judgment at first instance it would be otiose for me to quote large sections
of
the speeches
of
their lordships in those cases. I accept that the effect
of
those cases is succinctly but accurately summed up in paragraph 36
of
Mr Chamberlain's Skeleton Argument. In that paragraph he submits that the earlier
of
the authorities (Lambert and Kansal (No.2)), expressly approved and followed in McKerr and Hurst, show very clearly that the Human Rights Act cannot be used to challenge a person's continued detention on the basis that the process which led to it contravenes a Convention right if the impugned process occurred prior into the coming
of
force
of
the Human Rights Act.
- To reinforce the point, however, it is worth referring to Lambert. In that case, Mr Lambert had been convicted
of
possession
of
a Class A controlled drug with intent to supply and sentenced to imprisonment on 9 April 1999. He appealed against his conviction on the basis that the way the trial judge had interpreted the relevant legislation violated the presumption
of
innocence guaranteed under Article 6(2)
of
the Convention. The majority
of
the House
of
Lords held that it was not open to him to rely on Convention rights to impugn the process by which he had been convicted. During the course
of
his speech Lord Slynn said: -
"[13] Even
of
course accepting that a trial today must observe article 6
of
the Convention rights and that an appeal court and the House in the way it proceeds must give effect to Article 6, it is a very different thing to say that
words
"It is unlawful for a public authority to act in way which is incompatible with Convention rights" (emphasis added) means that the House must
rule
that had the Convention been in force (which it was not) the direction
of
the judge to the jury would have been incompatible with convention rights and that means that "it is unlawful" for the Judge to have directed as he did. I agree with Sir Andrew Morritt V-C in paragraph 21
of
his judgment in Wilson v First County Trust Ltd (No.2) [2002] QB 74, in which he said, at page 89
"Nor should the decisions
of
courts and tribunals made before those sections came into force be impugned on the ground that the court or tribunal was said to have acted in a way which was incompatible with Convention rights"
[14] On that basis the Appellant cannot rely on the 1998 Act to challenge the Judge's direction to the jury."
- Mr Chamberlain submits that this case, for all practical purposes, is indistinguishable from Lambert. In Lambert there was a complaint about the process by which a person had been convicted and then detained. In Lambert the impugned process and the commencement
of
detention occurred prior to the coming into force
of
the Human Rights Act but the challenge to that process and detention took place after the coming into force
of
the Act. In Lambert the allegedly unlawful detention continued after the coming into force
of
the Human Rights Act. All these features are present in the instant case.
- Despite the attempts
of
Mr Gordon QC to argue to the contrary it seems to me that Mr Chamberlain's submissions on this issue must be right. I simply do not see how it is open to me to approach this case in any different way from the approach taken in Lambert and the decisions
of
the House
of
Lords which followed. In my judgment the key date for the purpose
of
considering whether the claim based upon Article 5 can be maintained is 16 December 1997. That being so, the claim is bound to fail.
- Is it the case that the claim under Article 5 is doomed to failure on this ground but claims under other Articles are not? In the particular context
of
this case I do not consider that can be the case. The whole
of
the Claimant's case, in reality, centres around the events at the Belfast Crown Court in 1997 and I do not see in those circumstances how any claim under section 6
of
the Human Rights Act 1998 (whichever
of
the Articles
of
the Convention are invoked) can succeed.
- Since that is my primary conclusion it is unnecessary for me to consider whether or not breaches
of
the various Articles as relied upon by the Claimant are made out. Out
of
deference to Mr Gordon QC, however, I should deal, comparatively briefly, with the alleged breach
of
Article 5 and state my conclusions on the other alleged breaches.
- The main point about Article 5 is succinctly put by reference to paragraph 11
of
the Supplemental Outline Submissions put in by Mr. Gordon QC. In that paragraph he submits that there can be no "lawful" detention which commits a person to detention on grounds
of
dangerousness under a procedure where compulsory detention on grounds
of
dangerousness is inferred solely from lack
of
fitness to plead to criminal charges (which are in any event denied). Despite that way
of
formulating the point, however, the reality is that the substantive complaint made by Mr. Gordon QC concerns the failure to investigate whether or not the person in question has committed the acts or made the omissions which found the criminal charge.
- Mr Chamberlain points out that Article 5(1) provides for the detention
of
persons on a number
of
bases. One
of
those bases is the lawful detention
of
a person
of
unsound mind. He submits that the failure to determine whether the Claimant did the acts necessary for the offence charged against him does not offend Article 5 since the detention was not by reference to the acts charged against him but by reference to the finding that he was unfit to be tried. Mr Chamberlain further submits that the detention
of
a person on the basis that he is
of
unsound mind will be lawful if the detention is in accordance with a procedure prescribed by domestic law; the detention is not arbitrary; the detention takes place in a hospital or other therapeutic setting not in a prison and the detainee is entitled to take proceedings by which the lawfulness
of
his detention shall be decided speedily by a court and his release from detention ordered if the detention is not lawful.
- It seems to me that Mr. Chamberlain's submissions are well founded. It follows that if the criteria set out in the preceding paragraph are satisfied the detention in question will not be unlawful.
- Mr Chamberlain submits and I accept that the criteria set out above are satisfied in this case. The procedure by which the Order was made in the Belfast Crown Court was in accordance with domestic law. The detention was not arbitrary in the sense that that
word
is understood in the jurisprudence
of
the European Court as to which see paragraphs 52 to 57 above. The Order required the Claimant's admission to hospital for medical treatment. Finally, the Claimant has throughout had access to an independent and impartial tribunal (at the material time in Scotland the Sheriff; in England the Mental Health Review Tribunal) which could order his discharge if he ceased to meet the detention criteria.
- In my judgment the Applicant would not have made out a breach
of
Article 5 even if it was open to him to pursue a claim based upon such breach.
- I simply add for completeness that I would have dismissed any claims based upon Articles 6, 7, 8 and 14 for the reasons which are contained in Mr Chamberlain's Skeleton Argument and Further Note.
- It follows from the above that this challenge fails. As a matter
of
form I should record that during the course
of
the proceedings I granted permission to bring this claim since, obviously, it raised properly arguable issues. I was also told that the Claimant was not pursuing his claim against the Advocate
General
for Scotland. In this judgment, therefore, the
word
Defendants is used to mean the parties named in the title
of this judgment.