R (OS) v SSHD  EWHC 1903 (Admin)
Home Office decision not to approve unescorted community leave following MHRT deferred conditional discharge was not unlawful; HO entitled to rely upon separate factors than those considered by MHRT, including absconsion risk flowing from immigration status.
- 1 Facts
- 2 Decision
- 2.1 Ground 1: Errors of fact
- 2.2 Ground 2: Consideration of facts logically unconnected to the risk of absconsion
- 2.3 Ground 3: Failure to have regard to the MHRT's decisions
- 2.4 Ground 4: Failure to balance public risk against Claimant's rights
- 2.5 Ground 5: Failure to consider the imposition of conditions
- 2.6 Ground 6: Unbalanced selection of facts relied upon
- 2.7 Ground 7: Inconsistency in relation to immigration and mental health functions
- 2.8 Ground 8: Failure to explain dissatisfaction with MHRT decision
- 2.9 Ground 9: Procedural unfairness
- 2.10 Conclusion
- 3 Other
- 4 External links
OS, a Turk, claimed asylum in the UK on 28 March 1999. On 28 March 1999 he was arrested for murder; on 15 February 2000 he was transfered to Chase Farm Hospital; on 30 September 2003 he was convicted of manslaughter on the grounds of diminished responsibility; on 23 April 2004 he was made subject to s37/41 MHA 1983.
On 25 May 2005 the MHRT granted a deferred conditional discharge. The conditions were (a) residence at 24-hour supported accomodation and (b) supervision and compliance. The discharge was deferred until (a) the conditions could be met and (b) the Claimant had undergone a period of testing in the form of unescorted community leave.
On 23 August 2005 the MHRT reconvened and confirmed their original decision. By the stage UCL had been requested by the RMO.
On 25 November 2005 the MHRT reconvened and again confirmed their original decision. They directed that the Defendant provide written reasons for refusing consent to UCL, and recommended that the RMO consider shadowed leave.
On 23 December 2005 the Defendant provided their reasons. It was noted that the Claimant was liable to deportation as his rights of appeal as an asylum seeker had been exhausted on 4 March 2002, and that "the risk of absconding in [the Claimant]'s case, because of his immigration status in this country, was such that it would be inappropriate to grant such leave".
The Claimant sought JR of this decision.
On 10 January 2006 the IND decided that the Claimant's deportation to Turkey would be conducive to the public good and, noting that he would be able to receive the same level of medical treatment there, issued a deportation order. His appeal was heard on 11 July 2006 (and at the time of this judgment the decision was expected shortly).
On 24 February 2006 the MHRT reconvened again and confirmed their original decision, observing that conditional discharge could not be pursued because of the Defendant's refusal to allow UCL or shadowed leave.
On 20 March 2006 (in response to the original JR) the Defendant provided a witness statement from a case worker who had considered the case de novo and had concluded that UCL could not safely be granted. This was on two grounds:
- (a) The risk of absconding. This was one of several factors and could, depending on the circumstances, be the crucial or determinative factor. Risk of absconsion flowing from immigration status was relevant but could not be the sole reason for refusal. The Claimant stood to be returned to Turkey as a failed asylum-seeker (having claimed a fear of persecution in Turkey) and because of the deportation order; therefore there was an absconsion risk. The Claimant had a history of absconsions. He was concerned about reprisals from the victim's family, fellow Turks, and would frequent a Turkish community on UCL; these fears would increase the absconsion risk. He had not absconded from UGL, but UCL gives further opportunities to abscond.
- (b) The risk to the public. Considering the manslaughter conviction and the restriction order, the risk was of inter-personal violence and likely to be at the more serious end of the scale. The Claimant did not acknowledge the seriousness of the index offence; had given inconsistent accounts of his understanding of his behaviour and illness; had little victim empathy; and there was evidence that he would present a risk of violence in the absence of psychosis. Although he was in remission, schizophrenia is relapsing and were the Claimant to abscond there was a significant risk his mental state would deteriorate and the risk increase.
The arguments in this case were directed against this March decision.
The following principles were accepted:
- (1) "... the scheme of the Act placed on the [Secretaty of State] the responsiblity in the case of restricted patients to balance the patient's claim to liberty against the interests of eeryone else to be safeguarded against the risks to which such liberty may give rise.... and if the finding or recommendation of the MHRT leaves him in doubt, he is not only entitled but bound to look further afield for guidance: the finding and recommendation of the MHRT may assist him to fulfil this obligation, but cannot dilute it or impede its fulfilment or obviate the need for the exercice by him of an informed judgment whether consent should be forthcoming." R (SSHD) v Harry  1 WLR 1737
- (2) "... the Secretary of State has a duty to respond with reasonable promptness to recommendations by a Tribunal and to requests by a RMO; not to obstruct or cause unreasonable delay to the implementation of a Tribunal's decision; and to follow recommendations made by a Tribunal in the absence of sound reasons or new circumstances." R (RA) v SSHD (2002) EWHC 1618
- (3) The Defendant is entitled in making his assessment of risk to consider the risk of absconsion, and so the Defendant will be able to take into account factors which the MHRT would not or could not consider, such as the immigration status of the patient and whether this or any other factor would affect the the absconsion risk.
The Claimant challenged the March decision on nine grounds which are summarised below.
Ground 1: Errors of fact
The March decision relied upon three incidents to show a history of absconding. The first occured in 2000 and not 2002 as mistakenly stated. The Claimant said the second one in 2004 was merely 'straying beyond the grounds' rather than absconding; nevertheless, it was relevant to his compliance with conditions and hence absconsion risk. The third was incorrectly dated 2005 but was in fact the same as the second; however, the caseworker was aware of the apparent ambiguity.
Any inaccuracy has to be considered in the light of the other material available and relied upon in relation to absconsion risk: there were a substantial number of other reasons so the inaccuracies did not impugn the decision.
Ground 2: Consideration of facts logically unconnected to the risk of absconsion
The Claimant contended that the main basis advanced by the Defendant for absconsion risk was that he stood to be returned to Turkey, and that this does not provide evidence of absconsion risk; and that neither did the nature of the offence nor the imposition of a restriction order. He also challenged the reliance upon fear of reprisals and the assumption that he would move to or frequent a Turkish community.
The Defendant did not rely on the immigration status as the principal basis for asssessing absconsion risk. The Claimant was deeply concerned about returning to Turkey, which might well influence his conduct. Further, his fears of reprisals here were significant as he could be found and would lack the protection of being in hospital. There was no merit either in the critisicm of the assumption that he would frequent a Turkish community: he used an interpreter at court and he and the victim had lived in a Turkish community.
Ground 3: Failure to have regard to the MHRT's decisions
The Claimant contended that the decisions were relevant because (1) they recommended shadowed leave and (2) they reached conclusions on the potential risk to the public on conditional discharge (that in his present state he was a low risk). He relied upon an undertaking to Parliament in 1987 that the Defendant would take full account of the Tribunal's views on any recommendation made. He stated that this was especially so since the discharge criteria entailed a consideration of risk, and in this regard stressed that the MHRT had the characteristics of a court of law, with a mandatory medical examination before the hearing. He complained that the March statement did not refer the MHRT decisions, or the fact that refusal to consent was detrimental to the Claimant's health.
This was not accepted as the caseworker made clear that he had reconsidered all the evidence before the court, which obviously included the MHRT decisions and references to them; and the basis of the request to the Defendant was abundantly clear. (Cannot make sense of para 64b.) There was nothing significant to which the caseworker had failed to refer; indeed, his conclusions on risk following absconsion were consistent with the MHRT's.
The Defendant has substantial knowledge of matters not considered by the MHRT or perhaps more accurately were outside their expertise: (1) The Defendant knew that the asylum claim had been on the basis of a fear of persecution, which was relevant to absconsion risk. (2) He knew the appeal to the deportation order was on the basis that Turkey was an inappropriate destination. (3) He was able to appraise the risk of reprisals and the affect on absconsion risk. (4) He would know from experience the significance and relevance of these factors, and was entitled to attach substantial weight to these factors.
Ground 4: Failure to balance public risk against Claimant's rights
The Claimant complained that the statement made no reference to the right to liberty or the impact on the Claimant's health. The decision of the Defendant has to be subject to very anxious scrutiny but it it necessary to take a common sense, rather than a 'nit-picking', approach to the reasoning in that decision. The judge was satisfied that the caseworker had carried out the balancing exercise as the issues would have been obvious to the caseworker. Additionally, it is relevant that the decision would be a short-term one: the Claimant could well be deported soon and, if not, a fresh decision would be needed as one of the reasons against UCL would have disappeared.
Ground 5: Failure to consider the imposition of conditions
The Defendant has power to attach conditions to leave in the same way as the MHRT may attach conditions to discharge. (This was wrong but in practice the Defendant can withhold consent unless the RMO attaches conditions.) The Claimant complained that the caseworker's statement had not mentioned shadowed leave even though in February 2005 the MHRT had recommended this. The Defendant said that shadowed leave (which it defined as leave where the patient was shadowed without his knowledge) had been discontinued over a year ago since (1) it was unethical and (2) it could lead a deterioration in mental state if the patient thought he was being followed. There was no cogent reason to challenge this on public law principles.
Ground 6: Unbalanced selection of facts relied upon
The Claimant relied upon various positive comments from the medical documentation which had not been mentioned by the caseworker. However, the caseworker had in fact alluded to the fact that there had been no absconsion attempts on UGL when distinguishing this from UCL. Additionally, there was other evidence that there was a substantial absconsion risk and that upon deterioration the nature of the risk was of most serious inter-personal violence; a conclusion that could not be impugned on public grounds.
Ground 7: Inconsistency in relation to immigration and mental health functions
The Defendant stated (in relation to mental health) that the Claimant could not be safely treated in the community - even in a 24-hour supported hostel - but (in relation to immigration) that he could return to his family home if deported. The Claimant contended that this was contradictory. However, the risks in the two situations would be different: (1) there would be no fear of deportation if the Claimant had already been deported and (2) there would apparently be no fear of reprisals from the victim's family in Turkey.
Ground 8: Failure to explain dissatisfaction with MHRT decision
The Claimant complained that the Defendant should explain the dissatisfaction with the MHRT decision but had not. In fact, the Defendant was not in dissatisfied or in disagreement, but rather took into account other relevant factors which entitled him to reach his conclusion. Even if the Defendant had disagreed with the MHRT, the statement gave adequate reasons for refusing UCL.
Ground 9: Procedural unfairness
The Claimant complained that he had not been offered the opportunity to address the concerns on absconsion, an opportunity made more important by the MHRT decision conditionally to discharge. However, in various documents since April 2005 the Claimant had been made aware of the Defendant's stance. In making the March 2006 decision the caseworker had considered the Claimant's detailed JR challenge to the December 2005 decision. All the material relied upon was available to the Claimant - no new material was considered - and the Defendant's reliance upon it would have been obvious. There were no cogent factors identified which could have led the Defendant to a different conclusion if representations had in fact been made.
Application dismissed for the above reasons.
The Defendant had agreed by a letter of 23 June 2006 to hear representations within 7 days of the deportation order appeal decision and to reconsider the UCL decision within 7 days of receiving such representations. The Claimant's counsel tried to argue (to get inter partes costs) that this letter amounted to the Defendant conceding the claim; however, it did not impugn the March decision and, in any event, the Claimant had not abandoned his claim after the letter. The Defendant had previously agreed to pay the costs of the claim up until the March decision.
Christopher Buttler (instructed by Kaim Todner) for the Claimant
Andrew Henshaw (instructed by Treasury Solicitor) for the Defendant