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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wirral Health Authority & Anor, R (on the application of) v Mental Health Review Tribunal & Ors  EWCA Civ 1901 (13 November 2001)
Cite as:  EWCA Civ 1901
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Scott Baker)
Strand, London WC2
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE MANCE
|THE QUEEN ON THE APPLICATION OF WIRRAL HEALTH AUTHORITY AND WIRRAL BOROUGH COUNCIL||Respondents|
|- v -|
|MENTAL HEALTH REVIEW TRIBUNAL||Defendant|
|(2) WIRRAL AND WEST CHESHIRE COMMUNITY NHS TRUST (3) ASHWORTH SPECIAL HOSPITAL AUTHORITY||Interested parties|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MISS F. MORRIS (instructed by Messrs Hill Dickinson, Liverpool) appeared on behalf of the Respondents.
MR. R. CLAYTON appeared on behalf of the Ashworth Hospital Authority.
Crown Copyright ©
"The decision that I made on 5th January 2001, to discharge DE from his section 37 (Notional) order was not made for clinical reasons. The decision was taken on legal grounds as I was advised that it would be legally inappropriate for DE to be simultaneously detained under both sections 3 and 37 of the Mental Health Act 1983."
"Mr. McDermot [leading counsel for DE] made some argument on the basis that the hospital order under section 37 is in the nature of a criminal penalty. It is true that it is a direct alternative to other sentencing options: see section 37(8). It was imposed in this case on transfer from prison, initially via section 47 of the Act, but the sentence of imprisonment as such has long since expired. Mr McDermot argues that because of the criminal context giving rise to section 37 orders, whether imposed directly by a criminal court, or arising as a result of transfer to hospital from prison, that once discharged they are not renewable full stop; i.e. whatever the circumstances. I cannot accept this where the discharge is in the circumstances unlawful."
"(2)(a)... the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either -
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;...
(b) . . . having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]".
"The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows: (1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction.
Under the terminology of void and voidable decisions, this proposition raises a paradox, namely, that a decision, although technically void, is in practice voidable. Such a paradox is, however, circumvented if we abandon those terms terms which "lead to confusion" and instead use the terms lawful and unlawful decisions. Decisions are thus presumed lawful unless and until a court of competent jurisdiction declares them unlawful. There is good reason for this: the public must be entitled to rely upon the validity of official decisions and individuals should not take the law into their own hands. These reasons are built into the procedures of the application for judicial review, which requires for example an application to quash a decision to be brought within a limited time. A decision not challenged within that time, whether or not it would have been declared unlawful if challenged, and whether or not unlawful for jurisdictional error, retains legal effect. So does a decision found to be unlawful but where a remedy is, in the court's discretion, withheld. The language of void and voidable cannot, however, accommodate such an effect, as it would insist that a void decision, being void ab initio, is devoid of legal consequences and that a voidable decision is capable of being set aside."
"It would, however, be inconsistent with the doctrine of ultra vires . . . if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had legal effect upon the rights or duties of the parties to the proceedings. . ."
"Subordinate legislation or an administrative act is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all."
"No one shall be held to be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."