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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Upadrasta v The Commissioner of the City of London Police [2023] EWHC 1853 (KB) (17 July 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/1853.html Cite as: [2023] EWHC 1853 (KB) |
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KING'S BENCH DIVISION
ON AN APPLICATION TO SET ASIDE
AN ORDER OF
THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MASTER THORNETT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
KIERAN UPADRASTA |
Claimant |
|
- and – |
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THE COMMISSIONER OF THE CITY OF LONDON POLICE |
Defendant |
____________________
Russell Fortt (instructed by Weightmans) for the Defendant
Hearing date: 12 July 2023
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Mrs Justice Hill DBE:
Introduction
The relevant provisions of the MHA
"136 Removal etc of mentally disordered persons without a warrant
(1) If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons-
(a) remove the person to a place of safety within the meaning of section 135…
(1A) The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—
(a) any house, flat or room where that person, or any other person, is living, or
(b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
(1B) For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.
(1C) Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult-
(a) a registered medical practitioner,
(b) a registered nurse,
(c) an approved mental health professional, or
(d) a person of a description specified in regulations made by the Secretary of State."
"139 Protection for acts done in pursuance of this Act
(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, unless the act was done in bad faith or without reasonable care.
(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.
(3) This section does not apply to proceedings for an offence under this Act, being proceedings which, under any other provision of this Act, can be instituted only by or with the consent of the Director of Public Prosecutions.
(4) This section does not apply to proceedings against the Secretary of State or against NHS England, an integrated care board, a Local Health Board or Special Health Authority or against a National Health Service trust established under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 or NHS foundation trust or against the Department of Justice in Northern Ireland or against a person who has functions under this Act byvirtue
of section 12ZA in so far as the proceedings relate to the exercise of those functions…".
The facts
The procedural background
"It is clear that the Officers were therefore purporting to use their powers under the Mental Health Act.
Section 136 of the Mental Health Act does not authorise a Police Officer to force entry into anybody's private residence, to detain them and remove them from the residence. Section 136…requires that a person is found in a public place.
Consequently the powers which the Defendants officers were purporting to utilise on this occasion were not in fact powers which were available to them."
"We did not provide a copy of your letter of the 4th January to the Court, the letter did not request that we did so and as you will have noted we asked the matter to be listed by way of a hearing which the Court decided not to do".
The issues
Issue (1): Should the Master's order be declared invalid under CPR 3.10(a) in light of the prohibition on Masters making such orders?
"[w]here these Rules provide for the court to perform any act then, except where an enactment, rule or practice direction provides otherwise, that act may be performed – (a) in relation to proceedings in the High Court, by any judge, Master, Registrar in Bankruptcy or District Judge of that Court…".
"3.1 A Master or District Judge may not make orders or grant interim remedies…
g) in applications under section 139 of the Mental Health Act 1983 for permission to bring proceedings against a person".
"3.10. Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
"The acts of an officer or judge may be held to bevalid
in law even though his own appointment is invalid and in truth he has no legal power at all. The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so": Fawdry
v
Murfitt [2003] QB 104, at 112A-B, per Hale LJ (as she then was), citing Wade & Forsyth, Administrative Law, 8th ed (2000), pp.291-292.
"Judge Davies is indeed a judge,validly
appointed as such. All those involved in arranging for her to hear this case believed that the case had been properly assigned to her. She herself believed the same. She sat as such and was treated as such by everyone involved…It could not be said that her want of authority was notorious".
"No doubt the general reputation of the law and the public's confidence in it must be protected as surely as the interests of individual parties who have proceeded on the assumption that a judgment in their case is perfectlyvalid,
where that is exactly how it seems to all the world. Public confidence as well as individual parties are, in my judgment, protected by the requirement that there be a court of competent jurisdiction convened to hear the case, that the judicial officer be not a usurper and that he has a colourable title to sit where he does".
"The plain fact here is that the case was proceeding in a court competent to hear it. The judge was not a usurper. The parties and the judge apprehended no defect in his appointment or authority. He had what has been called "colourable authority" or "colourable title" because he was a duly appointed recorder eligible to be authorised by the Lord Chancellor to sit in the High Court".
"To draw over-technical distinctions in the application of the de facto doctrine would…provide an undesirable incentive for a party dissatisfied by the judgment of a judge to investigate and challenge his authority to hear the case".
"It is clear from the Court of Appeal's judgment in Baldockv
Webster that the doctrine is not to be applied technically - but rather in light of the evil it is designed to avoid. Whilst I appreciate that there is a difference between a Recorder who mistakenly thought he was sitting in the court for which he was authorised, and a Master who considered that he could hear a case that ought to have been assigned to a judge, I do not consider that the principles differ. The Master was not "a usurper". He had absolute "title" to sit where he sat, and can be excused for not referring the case to a judge when he was not asked to do so. An appeal was available (with permission) from his decision. Public confidence requires that the de facto office doctrine also apply on the facts of this case."
Issue (2): Should the Master's order be declared invalid under CPR 3.10(a) by reason of other procedural failings and/or instances of impropriety by the Claimant?
Issue (3): Should the claim be struck out pursuant to CPR 3.4(2)(c) and/or (b)?
(i) Mr Simblet was right to contend that the burden of justifying the decision to enter the Claimant's flat is on the Defendant (given that the fact of entering the flat is admitted). The Claimant cannot therefore be criticised for not emphasising in his Particulars of Claim the basis on which the officers may seek to justify their actions (even if some of the factual background to that rationale is later admitted by the Claimant). In any event paragraph 8 of the Particulars of Claim and the 1 April 2022 letter had referred to the Claimant being told by the officers that they had concerns about his welfare.
(ii) The pleaded assertion that the Claimant was told that he was being detained while he was in the flat has now been accepted as an error, but does not alter the thrust of the Claimant's case, to the effect that he was in fact detained while in the flat.
(iii) As to the Claimant's solicitor's 1 April 2022 letter, there is presently a factual dispute as to whether and if so when the officers exercised their section 136 powers. There was nothing factually inaccurate in the contents of the letter. The letter was also legally accurate, save for the assertion that the section 136 power requires that a person be "found" in a public place (which it no longer does); but this error does not negate all the other points being made in the letter.
In any event these are precisely the sort of issues that the Claimant's solicitor anticipated would be dealt with on the hearing of the application; and which can now be dealt with on the Defendant's application to set aside the Master's order.
Issue (4): Should summary judgment be granted to the Defendant under CPR 24?
"The police may well have an answer to Mr Seal's claim. But their case is not without difficulty. If he was "removed" under section 136 of the Mental Health Act 1983 from his mother's home, he cannot have been "found in a place to which the public have access". If he was arrested in her home for a breach of the peace, and then "removed" under section 136 after they had taken him outside, can it be said that they "found" him there? (To say otherwise would deprive section 136 of much of its usefulness when an arrested person is later discovered to have a mental disorder.) These are questions which deserve to be addressed at the trial of the claim. By no stretch of the imagination is thisvexatious.
It may not be worth a great deal of money but that is not the point".
Issue (5): Should the Master's order be set aside under CPR 23.10 because he was wrong to grant section 139 leave on the merits?
Conclusion
(i) The Master's order is not to be declared invalid under CPR 3.10(a) in light of the prohibition on Masters making such orders or by reason of other procedural failings and/or instances of impropriety by the Claimant;
(ii) The Defendant's applications for strike out and summary judgment are dismissed; and
(iii) The Master's order is not set aside under CPR 23.10 because he was wrong to grant section 139 leave on the merits.