B e f o r e :
THE HONOURABLE MR JUSTICE WYN WILLIAMS
|| THE QUEEN ON THE APPLICATION OF
DAVID GRANT JUNCAL
||- 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
(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
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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
(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.
(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.
- 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)  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  QB 198 the Court of Appeal accepted, as in its view the ratio of their lordships' decision in Raymond v Honey  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  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  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:
(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  2AC 545; R v Kansal (no.2)  2AC 69; In Re McKerr  1 WLR 807 and R (Hurst) v London Northern District Coroner  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: -
" 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)  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"
 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.