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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Juncal, R (on the application of) v Secretary of State for the Home Department & Ors [2007] EWHC 3024 (Admin) (19 December 2007) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2007/3024.html Cite as: [2008] MHLR 79, [2008] ACD 28, [2007] EWHC 3024 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF DAVID GRANT JUNCAL |
Claimant |
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- and - |
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(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 |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(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
____________________
Crown Copyright ©
Mr Justice Wyn Williams : :
"(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."
"(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
" 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 "
THE PROCEEDINGS AT THE BELFAST CROWN COURT
THE MAKING OF THE MENTAL HEALTH (NI) ORDER 1986
"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)."
DISCUSSION
"(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 whosevires 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.
"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."
"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."
"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.
"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.
"[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."