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Neutral Citation Number: [2010] EWHC 82 (Admin) |
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CO/11268/2008 |
IN
THE
HIGH COURT
OF
JUSTICE
QUEEN
'S BENCH DIVISION ![](/images/contextup.png)
THE
ADMINISTRATIVE COURT
|
|
Royal Courts of Justice Strand London WC2A 2LL
|
|
|
18 January 2010 |
B e f o r e :
MR JUSTICE COLLINS
____________________
Between:
____________________
Computer-Aided Transcript
of the
Stenograph Notes
of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to
the
Court)
____________________
Mr H Southey (instructed by Roberts Moore Nicholas Jones) appeared
on
behalf
of the
Claimant
Miss K Olley (instructed by Treasury Solicitors) appeared
on
behalf
of the
Defendant
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
- MR JUSTICE COLLINS:
The
claimant in this case, who is known as
DK
, was, when sentenced in November 2001 for three offences, 21 years old.
The
offences in question were one
of
causing grievous bodily harm with intent, one
of
causing grievous bodily harm (or wounding) and one
of
assault occasioning actual bodily harm. He was sentenced to a total
of
nine years and seven months' imprisonment.
- He has a considerable number
of
previous convictions, many
of
which involved violence
of
one form or another, and there was ample evidence before
the
sentencing court which showed that he was a thoroughly dangerous young man and would be likely to commit further offences. Indeed,
the
report before
the
judge was that
the
risk
of
re-offending was high. He in fact had received some 20 convictions overall. His release date,
on the
law as it then was, was 29 August 2008, and his licence would be due to end at
the
three quarter stage
of
his sentence, namely June 2009.
On
11 April 2006, a direction was given and he was transferred to Broadmoor
on
20 April 2006.
On
12 July 2007, a Mental Health Review Tribunal decided that he should be released from Broadmoor, which meant that he was returned to prison.
The
basis
of the
decision
of the
Tribunal was that they were not satisfied that
the
treatability test had been met in his case.
The
Tribunal's view was that, contrary to
the
evidence given by a doctor from Broadmoor, that he had received some treatment, in fact he had not received any treatment which had done any good to him at all.
The
Tribunal accepted that he was suffering from psychopathic disorder
of
a sufficient nature and degree for
the
purposes
of the
provisions
of the
Mental Health Act, which would be
the
first step to justify a transfer to a mental hospital. But
the
Tribunal was not persuaded in
the
circumstances that it was appropriate for him to be liable to be detained for medical treatment in detention.
The
reason for that was, as I have said, that
the
Tribunal decided he had received no or no significant medical or other treatment which had alleviated or prevented deterioration in his condition. However, it is fair to say that
the
Tribunal appear to have accepted that, if he had co-operated, there was available treatment which would fall within
the
statutory provisions, and which might do some good for
the
claimant.
- In effect, what
the
claimant was doing was to recognise that he had a release date in August 2008, and he wanted to be sent back to prison in order that he could be released rather than kept in detention. So it was that he was returned to prison.
- Whilst he was in prison, there were further worrying matters discovered. In particular, he was found to have been in possession
of
material that related to bomb making, and an indication
of
a possible concern
on
his part to take some sort
of
violent action against others, and indeed he had maintained his views
on
that sort
of
approach. It seems that, in reality, there can be no doubt that he is a potentially very dangerous young man, and if he were at large, there is a distinct possibility -- it may even be a probability -- that he will commit further offences
of
violence. However, it must be made clear, and indeed as
the
law then stood it is apparent, that detention in a mental hospital cannot be justified
on the
basis purely that
the
individual is a danger, whether to
the
public or to himself. It can only be justified if there is treatment available which might alleviate or, as
the
law then stood, was likely to alleviate or prevent a deterioration
of
his condition.
- Indeed,
the
medical profession generally is adamant that detention in a mental hospital can only be justified if there is a treatment which may do some good. One can well understand why that is
the
position, and equally well understand why this country would not countenance anything short
of
that. One only has to think back to
the
use
of
mental hospitals in some countries for purposes
of
keeping out
of
action those whom
the
authorities consider should not be at large. One must be very careful to ensure that that does not occur. Hence
the
importance
of
treatability, rendered in this case
the
more important because
of the
decision
of the
Tribunal.
- I confess that when I read
the
papers I was concerned whether
the
decision
of the
Tribunal was one which could be justified, because a failure to co-operate if treatment otherwise would be available would, in my view,
on the
face
of
it not be a proper basis for saying that
the
condition was not treatable. I have not gone into that aspect in detail. Mr Southey, without being able, understandably, to refer explicitly to
the
decision, indicates that there is a decision which suggests that that may not be a correct approach, and certainly I can see that if
the
failure to co-operate is part
of the
psychopathic disorder (or whatever disorder there may be), then it may well be that that cannot be held against
the
individual in question. If,
on the
other hand, it is a deliberate decision not to co-operate for ulterior motives and not part
of the
mental disorder, then, as it seems to me, different considerations might apply. However, that has become somewhat academic because
of the
changes effected by
the
2007 Act, and now it is
the
availability rather than
the
taking up
of
treatment which is material. However, at
the
time that
the
decision that we are concerned with was made,
the
provisions
of the
2007 Act had not come force. They came into force in November 2008.
- So we come to
the
decision in question, and that was made in due course
on
21 August 2008. However, it was recognised that, if this decision was to be made, it ought to be at least notified to
the
claimant before and certainly not at
the
last minute before his release date. As I have said, in fact his release date was 30 August 2008.
The
relevant provision which justifies
the
transfer is contained in section 47
of the
Mental Health Act 1983. This provides as follows, so far as material:
"47(1) If in
the
case
of
a person serving a sentence
of
imprisonment
the
Secretary
of
State is satisfied, by reports from at least two registered medical practitioners-
(a) that
the
said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that
the
mental disorder from which that person is suffering is
of
a nature or degree which makes it appropriate for him to be detained in 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;
![](/images/contextup.png)
the
Secretary
of
State may, if he is
of the
opinion having regard to
the
public interest and all
the
circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in
the
direction; and a direction under this section shall be known as 'a transfer direction'."
- Thus, there must be reports from at least two registered medical practitioners. For
the
purpose
of
this case section 47(1)(a) was satisfied because, and it is not disputed, there were reports, as we shall see, from three registered medical practitioners that he was suffering from psychopathic disorder. But
the
question arises under (b) as to whether, because this was psychopathic disorder, such treatment was likely to alleviate or prevent a deterioration
of
his condition. That was an aspect that had to be addressed.
- There is before me a statement from a Mr Nanda, who was
the
senior caseworker at
the
Mental Health Unit
of the
Ministry
of
Justice and who was involved in arranging
the
claimant's transfer. What he says is, so far as material, as follows: that at
the
end
of
June 2008 he contacted Broadmoor and he was advised by
the
doctor who had treated
the
claimant there and who had given evidence before
the
Mental Health Review Tribunal that a possibility
of
a transfer back to Broadmoor should be explored because
of the
earlier contention that he was in need
of
treatment. He then requested a report from
the
prison. In fact, it transpired that
the
claimant had been removed from
the
prison at which Mr Nanda thought he was incarcerated to Her Majesty's Prison Garth, and so an update from Garth from a nurse dealing with him was also requested.
- It transpired that Dr Ross, who was
the
relevant doctor, could not see
the
claimant before 12 August 2008, and what he did then was to conduct an assessment with a Dr Walker. Dr Walker is not a registered medical practitioner, but a psychologist also working at Broadmoor. That assessment having been made, Mr Nanda spoke to Dr Ross
on
14 August. Unfortunately, as matters turned out, Mr Nanda was going
on
holiday after
the
14th and so was not available to take any part in
the
final decision-making which, as I have said, occurred
on
21 August. In any event, he spoke to Dr Ross, and, as Mr Nanda says in his statement, and I read from paragraph 7:
"
The
issue
of
treatability was paramount. It was failure satisfy
the
tribunal
on
this criterion in 2007 while [
the
claimant] was at Broadmoor Hospital that had necessitated his remission back to prison."
- So Mr Nanda very properly recognised
the
importance
of the
treatability issue, and indeed it was perhaps clear because
of the
decision
of the
Tribunal -- whether it was right or wrong being immaterial for this purpose -- that treatability was
the
most important issue because it was unlikely that there was going to be any issue about psychopathic disorder, that having been accepted by
the
Tribunal back in 2007.
- Mr Nanda continues:
"8. Dr Ross confirmed his opinion that [
the
claimant] was treatable, as evidenced by his engagement with treatment since his remission to prison. Dr Ross understood that his treatability was in dispute, but had advised that
the
prospects
of
effective treatment justified assessment by way
of
another prison transfer.
The
treatment itself would prevent further deterioration in his condition and better prepare him for a successful return to
the
community, minimising his risk
of
violent re-offending - his risk at
the
time
of
violence to others was considered to be high. This was
the
opinion
of
both Dr Ross and Dr Walker."
- Subsequently Dr Walker and Dr Ross put into writing their assessment
of the
claimant, his condition and
of
course
of
his treatability.
The
report itself is lengthy and detailed, and it confirms
the
matters stated by Mr Nanda in his statement.
The
assessment
of
Dr Ross was clearly that
the
claimant was treatable and that
the
treatment was likely to alleviate his condition. But, as section 47 makes clear, there is a need for at least two registered medical practitioners to reach
the
same conclusion before there can be a transfer. Mr Nanda only had
the
views
of
one because, as I have said, Dr Walker was not a registered medical practitioner, and it seems that that must have been recognised by Mr Nanda, although he does not say so in terms, because there were produced two reports from registered medical practitioners which were in due course relied
on
to justify
the
transfer.
- However, what Mr Nanda says in paragraph 9
of
his statement is
of
some importance, and it reads as follows:
"
On
14 August 2008 I minuted
the
file and passed it to my colleagues to effect
the
prison transfer in my absence if asked to do so. At that point,
the
endorsement
of
Broadmoor's Admission Panel
of the
recommendations
of
Drs Ross and Walker had not been secured.
The
panel subsequently provided their endorsement. I had hoped that
the
joint report by Drs Ross and Walker would have been provided in order that it would fully contribute to
the
transfer consideration, but it had not been received by
the
Mental Health Unit by
the
date
of the
decision, 20 August. However, it was not necessary to have it in order to make a final decision
on the
proposal given previous discussions with Dr Ross and
the
anticipated submission
of the
section 47 medical reports."
- It appears from what I have been told that it may be that that paragraph 9 is not as clear as it perhaps ought to have been, and that what Mr Nanda did was to indicate that
the
transfer should be carried out
on the
basis
of the
necessary report
of
another registered medical practitioner, but that his discussions with Dr Ross had made it clear that Dr Ross's view was that he was treatable and should be, in Dr Ross's view, transferred.
- I note that Dr Ross's lengthy report is dated 18 August, although it is not entirely clear when it was actually forwarded to
the
relevant unit
of the
Ministry
of
Justice, although Mr Nanda
of
course was not there at
the
material time.
The
law requires a report. It does not require that
the
report be in writing.
On the
other hand, it is obviously important that there should be a written report, and there was such a report from Dr Ross.
The
reports were then
on
pro-forma documents. They stated
on the
front that they were medical reports for
the
purpose
of
transfer under section 47. Then there is a declaration.
The
declaration reads as follows:
-
"I am
of the
opinion that
(a) this patient is suffering from ..."
And then there are
the
four conditions which were referred to in
the
1983 Act, and in this case psychopathic disorder is
the
relevant one within
the
meaning
of the
Mental Health Act 1983. So that is
the
first matter that has to be established, and then:
(b) that
the
mental disorder from which
the
patient is suffering is
of
a nature or degree which makes it appropriate for him to be detained in a hospital for treatment ..."
And that is
of
course within
the
first part
of
section 47(1)(b), and then
the
form goes
on
:
"and where
the
patient is suffering from psychopathic disorder or mental impairment
(c) that such treatment is likely to alleviate or prevent a deterioration
of
his condition
I recommend treatment in a special hospital
My full medical report is given
on the
reverse."
That is signed and dated by
the
relevant medical practitioner.
On the
back
of the
form, we have what is supposed to be
the
full report. There are three headings.
The
first is "Information to establish mental disorder, including reference to type
of
disorder and description
of
symptoms", and again there is no issue as to that because, clearly, it is common ground so far as all
the
doctors are concerned that
the
claimant is suffering from psychopathic disorder. Then we have "Reasons for conclusion that
the
mental disorder is
of
a nature or degree which makes detention in hospital for medical treatment appropriate", and then there is a heading "Where applicable, reasons for recommending treatment in a special hospital".
- There are three doctors who, in due course, were asked to report and whose reports were available to and, I have no doubt, were taken into account by
the
eventual decision-maker so far as
the
transfer is concerned. None
of
them deal explicitly with whether this particular claimant was treatable. Unfortunately, even Dr Ross does not deal explicitly with that in his formal report, although he does in
the
lengthy report with Dr Walker to which I have already referred, and he did,
on
Mr Nanda's evidence, and there is absolutely no reason to doubt it, when he discussed it over
the
telephone. So clearly there was available evidence from one medical practitioner, namely Dr Ross, that not only was it desirable that he should be admitted for treatment, but, and crucially in
the
circumstances
of
this case and having regard to
the
Mental Health Review Tribunal's decision, that this claimant was treatable.
- Unfortunately, none
of the
three doctors say that in terms in
the
report that is
on the
back
of the
pro-forma. Dr Ross says, in dealing with
the
last heading, "Presents an immediate and grave risk
of
harm to others". A Dr Kaur, whose medical report is hardly very full, says, "Present grave harm to others", and under "Reasons for conclusion that
the
medical disorder is
of
a nature or degree which makes detention ... appropriate", "It is chronic and his condition is deteriorating and violence risk to others". Indeed, he describes
the
mental disorder as "paranoia, violent and is at risk to others. Poor insight". That is
the
extent
of the
report. It may well be, because it was recognised that that was really, to say
the
least, somewhat unsatisfactory, that a further report was obtained from a Dr Crispin, and she says, under
the
reasons for recommending treatment, "
The
claimant is considered to be an immediate and serious risk to others and requires treatment in high security". Under
the
previous heading, she had said that he requires specialist treatment which could only be available in hospital.
- Again, there is no explicit indication that he will benefit from treatment, and it is not said clearly that he is someone who is treatable.
- Miss Olley submits, and
on the
face
of
it with some force, that it must be implicit that
the
doctors did take
the
view that he was treatable. Why otherwise would they indicate that, in their view, he ought to be admitted for treatment? It would have been a pointless exercise if, in their view, he was not treatable.
- However,
the
problem in that approach is, Mr Southey submits, created by a decision
of the
Court
of
Appeal in TF v
the
Secretary
of
State for Justice [2008] EWCA Civ 1457. That decision had not been made before this transfer was made, and so those responsible did not have
the
benefit
of the
view
of the
Court
of
Appeal. That was a case where, just before he was due to be released,
the
claimant, who was a young man who had a rather, it would seem, similar sort
of
record to this claimant, was diagnosed as having dissocial personality disorder, and there had been a transfer in his case. However,
the
evidence before
the
court in that case was that there had been a failure to consider with
the
necessary two doctors
the
question
of
treatability. Waller LJ gave
the
only reasoned judgment
of the
court (
the
other two members agreed). In paragraph 17, having cited section 47, he referred to observations
of
Dyson J in a case called ex parte Gilkes [1999] 1 MHLR 6 to this effect:
"If
the
reports are manifestly unreliable, then
the
Secretary
of
State cannot reasonably be satisfied that
the
2 conditions are met
on the
basis
of the
reports, and a decision to rely
on
them in such circumstances will be capable
of
successful challenge by judicial review. A medical report may be unreliable for a number
of
reasons. It may
on
its face not address
the
relevant statutory criteria. It may be based
on
an assessment which is so out
of
date that
the
mere fact
of
a lapse
of
time will be sufficient to render it unreliable. It may be unreasonable to rely
on
a report based
on
an assessment conducted an appreciable, but not inordinate, time before
the
decision to transfer where
the
mental disorder is a fluctuating and unstable condition and/or where there has been a change
of
circumstances since
the
assessment was made. In each case, it will be for
the
Secretary
of
State to consider whether in his judgment
the
medical report is one
on
which he can safely and properly rely so as to be satisfied that
the
conditions set out in paras (a) and (b)
of
s.47 are met. One
of the
considerations that will be uppermost in his mind is whether
the
assessment
on
which
the
report is based is sufficiently recent to provide reliable evidence
of the
patient's current mental condition."
- Waller LJ went
on
:
"18. If
the
decision is being taken as in this case right at
the
end
of the
sentence what must also be in
the
Secretary
of
State's mind I suggest is that a decision to direct a transfer cannot simply be taken
on the
grounds that a convicted person will be a danger to
the
public if released (as understandable as that concern must be) but can only be taken
on the
grounds that his medical condition and its treatability (to use a shorthand) justify
the
decision."
- Generally, treatability is
of
course
of the
greatest importance, but specifically in this case, because
of the
concerns expressed by
the
review Tribunal, treatability was, as Mr Nanda himself recognised because it led to his discussions with Dr Ross,
of
vital importance.
On the
facts
of
TF, as Miss Olley submits, she being counsel in that case as well,
the
decision-maker had not explicitly stated that she had taken treatability into account, or rather had not applied her mind specifically to
the
issue
of
treatability. However, she did have a report, as
the
court recognised, from a doctor who did deal with treatability, but, as Waller LJ indicated, in terms which seemed to be somewhat guarded.
- It is to be noted that, as
the
court spelt out in paragraphs 20 to 23,
the
same (or certainly similar) pro formas were used in that case. I imagine they would have been likely to have been
the
same. At paragraph 20 this is said:
"20.
The
report forms F1305 completed by [
the
two doctors] were as to
the
front pages pro forma, allowing for
the
crossing out
of
certain points and leaving in others. That process meant that
on the
front pages each doctor "Declared I am
of the
opinion that (a) this patient is suffering from ... (ii) psychopathic disorder ... within
the
meaning
of the
Mental Health Act 1983, and (b) that
the
mental disorder from which
the
patient is suffering is
of
a nature and a degree which makes it appropriate for him to be detained in a hospital for treatment" Then follows an instruction in italics "where
the
patient is suffering from a psychopathic disorder or mental impairment" and
the
form continues "(c) that such treatment is likely to alleviate or prevent a deterioration
of
his condition. My full medical report is given
on the
reverse." (emphasis as in original)
21. "
The
full medical reports
on the
reverse" were completed under two pro forma headings.
The
first is "Information to establish mental disorder, including reference to type
of
disorder and description
of
symptoms". Both doctors gave
the
required description.
22.
The
next heading is "Reasons for conclusion that
the
medical disorder is
of
a nature or degree which makes detention in a hospital for medical treatment appropriate". There is nothing in
the
heading that directs
the
attention
of the
doctor to giving reasons as to why he or she considers that treatment is likely to alleviate or prevent deterioration
of the
prisoner's condition.
23. In this instance neither doctor gave any reasons or provided any grounds in support
of the
view that they were
of the
opinion that
the
treatment would alleviate or prevent deterioration. Indeed
the
point each seems to make is that
the
appellant's condition makes him likely to commit further offences if he is released into
the
community."
- It seems from that citation that
the
third heading
on the
reverse did not exist
on the
forms that were before
the
Court
of
Appeal, and that third heading is
the
one which reads, "Where applicable, reasons for recommending treatment to a special hospital". Nevertheless, in this case,
on
none
of the
forms do
the
doctors give reasons or provide grounds in support
of the
view that
the
treatment would alleviate or prevent deterioration in that particular individual's case. That is, as I see it,
the
problem.
- Mr Nanda clearly did address treatability, but unfortunately
the
subsequent reports obtained did not in terms express that issue, and, as it seems to me, that issue was
of
fundamental importance. It must be borne in mind that one is dealing here with
the
liberty
of
an individual. If he was not detained in hospital, he would have been released from prison
on
31 August and his licence would have expired at
the
end
of
June 2009. I am told that he has applied to
the
Mental Health Review Tribunal, that his
application
was refused, but that
the
Upper Tier Tribunal has overturned that decision and he is due at
the
end
of
this month to have a further hearing before a Tribunal. But if he should not have been transferred in
the
first place, then
of
course he would now be entitled to release.
- I have no doubt that those who were in due course responsible for
the
ultimate decision would have been influenced by Mr Nanda's view, expressed from his discussions with Dr Ross, and may well have formed
the
view that it was indeed explicit, although not spelt out, that
the
doctors in question, particularly Dr Crispin because Dr Kaur's report was not at all satisfactory, that this claimant was treatable. But unfortunately it was not spelt out. One does not want to be overpedantic in these matters, but, as I have said,
the
court must bear in mind that it is dealing with liberty, and that therefore it is
of the
utmost importance that all
the
necessary preconditions for transfer leading to detention are properly seen through.
- Miss Olley realistically recognises that this was a case which, as she put it, having regard to TF, was somewhat borderline. Her submission was that it,
on
its facts, came
the
correct side from her point
of
view
of the
line. I am afraid I do not accept that. For
the
reasons that I have given, I take
the
view that, unfortunately,
the
reports that were relied
on
did not properly deal with
the
crucial matter in this case. It is, I fear, very unfortunate that Mr Nanda was not able see through
the
final decision. It may well be that if he had been available and had seen it through,
the
problem could have been overcome because it is clear that he recognised
the
importance
of the
treatability issue. But I have to approach this
on the
basis
of
TF, and however it may be considered undesirable that someone such as
the
claimant should be at large when he may well be a danger, nevertheless as
the
law stands, or certainly as
the
law stood when this decision was made, it is not possible to do other than indicate that this was an unlawful decision.
- In those circumstances, I must grant
the
relief sought, which is to quash
the
transfer decision.
The
effect
of
that will, I appreciate, be that he is released absolutely.
- Mr Southey,
the
only thing that concerns me is whether there ought to be some possibility
of
making necessary arrangements, because I do not know whether your client has anywhere to go.
- MR SOUTHEY:
The
answer is, I am also unaware. I have been trying to take instructions
on
his current position.
- MR JUSTICE COLLINS: It may frankly be thoroughly undesirable that simply
the
doors are opened without some arrangements being made for him to have somewhere to go.
- MR SOUTHEY: Obviously, given he is unlawfully detained at
the
moment --
- MR JUSTICE COLLINS: I follow that, but it may be in his own interests that -- they will have to be made quickly -- but that some arrangements are, if necessary, made. I do not know what
the
position is. Can you help
on
this at all, Miss Olley?
- MISS OLLEY: Yes, my Lord, I can. It is
the
intention
of the
treating team to organise a section 3 in respect
of
this claimant if he was successful today.
- MR SOUTHEY: My Lord, I mentioned that that was obviously a possibility.
- MR JUSTICE COLLINS: I can understand that. That involves rather similar evidence, does it not? When I say "similar evidence", I mean similar to 47.
- MISS OLLEY:
The
criteria would be as set out in section 3.
- MR JUSTICE COLLINS: Which effectively is mental illness, psychopathic disorder, now treatment available.
- MISS OLLEY: Yes.
- MR JUSTICE COLLINS: And
the
idea is that that will be done today, is it?
- MISS OLLEY: Yes, I believe so. So your Lordship need not to be too troubled --
- MR JUSTICE COLLINS: In that case, all I think I need do then as a matter
of
relief is simply to quash
the
decision. I will not direct any release because that would not be appropriate.
- MISS OLLEY: Strictly speaking, I suppose it might, my Lord, and it will be a matter for
the
treating team to respond to that.
- MR JUSTICE COLLINS: If
the
decision is quashed it means he is there unlawfully, so he has to be released. What I am getting at is that what I do not think it would be right for me to do is to say he must this minute be released.
- MISS OLLEY: I notice
the
subtle difference, and I appreciate your Lordship focusing
on
that, and I think that is
the
right way forward.
- MR JUSTICE COLLINS: Mr Southey, I think simply quashing
the
decision is sufficient for your purposes, is it not?
- MR SOUTHEY: I think that is right, my Lord. I think I requested a mandatory order, but I always anticipated that in some ways it might operate in a technical sense, in
the
sense it would require you to release from this particular section, but may result in --
- MR JUSTICE COLLINS: But
the
quashing is sufficient to achieve that, is it not?
- MR SOUTHEY: Absolutely, my Lord. So I accept that that is right. Two points -- one point I should perhaps just alert
the
court to, just so that it is aware
of
it,
of
course one
of the
reasons why a decision presumably would be made fairly quickly is that there will have been decisions to extend
the
current detention.
- MR JUSTICE COLLINS: Obviously there would be, I would have thought, medical evidence readily available. It must deal with treatability -- or now
of
course
the
availability
of
treatment.
- MR SOUTHEY: My Lord,
the
second point is
of
course, and I do not think there is any dispute about this, what we have also suggested in our skeleton argument is that
the
matter should be adjourned for
the
assessment
of
damages because he is obviously entitled to damages, whether or not he --
- MR JUSTICE COLLINS: Yes, I mean, there is an interesting question
on
that aspect, is there not, because if section 3 can be used, and if section 3 could at all material times have been used, then it may be that it would be difficult to say that your client has suffered any actual damage, but that is not a matter for me. You have claimed damages, have you?
- MR SOUTHEY: Yes, we have.
- MR JUSTICE COLLINS: I think technically that has to be put over.
- MR SOUTHEY: I suggested in
the
skeleton argument that it should be adjourned for that purpose. My lord,
the
other point obviously is costs, and we seek our costs.
- MR JUSTICE COLLINS: Are you legally aided?
- MR SOUTHEY: We are legally aided.
- MR JUSTICE COLLINS: I do not imagine you could resist costs?
- MISS OLLEY: No, my Lord.
- MR JUSTICE COLLINS:
The
usual order.
- MR SOUTHEY: My Lord, one final point that I would raise is that I am aware that there is in about three and a half weeks' time another TF case in this court, and in those circumstances I wonder whether a transcript could be expedited so it is available for that.
- MR JUSTICE COLLINS: They are very good.
- MR SOUTHEY: Thank you. I do not think there is anything else.
- MR JUSTICE COLLINS: Any other
application?
- MISS OLLEY: No, my Lord.
- MR JUSTICE COLLINS: Very well. Thank you.
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