From Mental Health Law Online
The ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4).
P was a post-tariff discretionary lifer who had been transferred to hospital under s47/49 MHA 1983.
In R (Hickey) v Secretary of State for the Home Department (1995) QB 43, the CA held that the right conferred on a discretionary life prisoner by section 34 of the 1991 Act to have his case considered by the Parole Board did not extend to those who were also detained under s47/49 MHA.
In R (D) v Secretary of State for the Home Department (2002) EWHC 2805 (Admin) the same judge as in this case held that Hickey remained good law, but that s74 was incompatible with the ECHR because there was no legal right to a Parole Board following a favourable s74 MHRT decision (it involved a discretion of the executive).
P claimed that:
- his detention should be reviewed by a single tribunal (exercising the MHRT's and DLP's functions);
- D was wrongly decided and s34 applies to all lifers even those detained also under the MHA; he suffered a infringement of his Convention rights because he has been unable to have his detention as a lifer reviewed; and
- his Article 5(4) right to a speedy review cannot be complied with because of the necessary delay which would follow after a tribunal decision. The standard delay between MHRT and DLP is 24 weeks.
There was evidence on both sides about practical issues. Where the requirements of the Convention are clear or established, evidence of administrative difficulties is irrelevant. It is only if there is room for judicial interpretation that practicalities become relevant as a written instrument should be given a reasonable, rather than an unreasonable, construction.
2% of s47/49 MHRTs result in a favourable decision whereas the figure is 22% for s37/41 MHRTs; however, the judge refused to infer that Tribunals were applying different tests.
Access to PB
R (D) v SSHD was correctly decided: it makes no sense to allow transferred lifers direct access to the PB, especially given that 98% are unsuccessful at the MHRT stage. Further, D was not appealed, and the SSHD remedied the incompatibility by amending s74 MHA.
There was no authority on the issue of whether Article 5(4) required a single tribunal to determine the lawfulness of detention, so it depends on interpretation of Article 5.
Article 5(1) contains various heads of detention; various considerations apply to each (e.g. alcoholics, illegal immigrants); a person may be detained under more than one head, and not only under crime and mental illness as in this case; there is not necessarily a causal link between the heads. If P's submissions were correct then Article 5(4) would require a single tribunal to determine all the heads in Article 5(1). This would lead to the unreasonable result of making it difficult for states to have the various grounds considered by specialist courts.
Provided there is no undue delay in the review of the lawfulness of detention, or other infringement of a Convention right, there is no reason to require that the same court (whether nominally one court or a panel that sits as more than one court) determine each head of detention. This is consistent with X v UK (1981) 4 EHRR 188 which stated that the content of the Article 5(4) obligation will not necessarily be the same for every category of detention.
Article 5(4) does not require that each head of detention be reviewed; it is only if detention under one head is determined to be unjustified that he can take proceedings in relation to the other. The CA in Hickey saw nothing illogical in consecutive hearings and were correct.
P submitted that the DLP and MHRT were concerned with substantially the same issue, namely whether the person presented a danger to the public, so combined hearings would avoid duplication and inconsistency. However, it is not correct to say that the issues are necessarily the same, although they may be in some or many cases. The tests in MHA 1983 s72 and s73 are concerned only with risks due to mental disorder, including risk to the detained person himself; detention must be necessary for treatment; and dangerous patients [with psychopathic disorders] must be released if not treatable. On the other hand, the PB is concerned only with risk to persons other than the prisoner, but irrespective of the cause: the DLP must not release unless it is “is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined” (see s34(4)(b)).
Danger may stem both from mental disorder and criminal associations/violent tendencies, and the assessment of each requires very different investigation. Therefore, DLP panels do not routinely include a psychiatrist whereas MHRTs always include a psychiatrist who must examine the patient (see MHRT Rules r11).
There are practical difficulties for the PB in assessing risk when the prisoner is detained in hospital. The CA in Hickey had said that this would be impossible, which is unlikely to be true. It would, however, be wrong to require a DLP to assess risk when the patient is receiving medication in hospital (!) although it might sometimes be appropriate. Given that only 2% of MHRT applications are successful it would be very wasteful of probation service resources.
The burden of proof at MHRTs is on the detaining authority whereas at the PB it is on the detained person; a single tribunal applying inconsistent burdens of proof would not find the intellectual task easy.
A discretionary life prisoner is entitled to a PB every two years (s34(5)(b) CJA) whereas he is entitled to a MHRT every year (and twice in the first year) (MHA 1983 s70), presumably because of the different contexts and increased potential for fluctuation in mental health. If P were right every annual hearing would have to be a combined MHRT/PB hearing.
There is no risk of inconsistent decisions with two tribunals: the PB cannot make a different decision on risk from MI unless it forms a "reasonable and bona fide" conclusion that "it has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal" (R (von Brandenburg) v East London and City MH NHS Trust (2003) UKHL 58 considered). If a case does turn on the different burdens of proof that does not indicate arbitrariness.
Joint hearings would lead to a substantial potential increase in workload of the PB. Following Stafford v UK (46295/99) the number of oral hearing would almost double to 950 per annum. If P were correct then there would potentially be a further 200.
Delay and damages
As far as delay is concerned, it is only if breach of the Convention right is inevitable that there is an incompatibility. The investigations and procedures necessary for the first court must take into account the fact that there have been investigations and a decision by the first court; however, the SSHD may not always be able to carry out investigations (e.g. assessment of risk) before the first hearing, and this will not necessarily preclude there being a speedy decision. There is no inevitable breach of Article 5(4) by the necessity for successive hearings. Whether there has been a delay must be determined on the particular facts. The standard period of 24 weeks applicable in all cases may involve a Convention breach: see R (C) v MHRT London South & South West Region (2001) EWCA Civ 1110
P relied upon R (Noorkoiv) v Home Secretary (2002) 1 WLR 3284 but the facts of that case were very different. He was unable to argue that the 90-day period in s74(2)(b) would delay the DLP hearing as it had not been in his claim form or skeleton argument.
P argued that the potential result where a transferred prisoner remained – solely on the basis of danger to himself – subject to the s41 restrictions, and unable to have his case referred to the PB, was disproportionate and involved a breach of Article 5, relying on R v Offen (2001) 1 WLR 253. However, that potential result situation concerned the conditions of detention (here, the legal conditions rather than physical) rather than detention itself (Ashingdane v UK 8225/78 (1985) ECHR 8); Offen concerned the duration of detention not merely the conditions. The situation was anyway hypothetical in this case and: (1) the situation is likely to be rare (the imposition of a life sentence involved risk to others); (2) the PB must consider risk on release, which is later than the MHRT hearing; (3) the risk to others would not necessarily stem from mental disorder; and (4) the PB hearing would be an academic exercise as far as continued detention is concerned.
P wanted the judge to direct an inquiry as to damages, the effect of which is similar to an interlocutory order for a split trial of liability and damages. In these cases the claimant must give notice, give evidence that damages are appropriate and an explanation of why damages and liability cannot fairly be dealt with simultaneously. Breach of a Convention right, including Article 5, does not necessarily result in an award of damages (Anufrijeva v London Borough of Southwark (2003) EWCA Civ 1406 and R (KB) v MHRT (2003) EWHC 193). There must be evidence of pecuniary damage or sufficient non-pecuniary damage to justify compensation. In this case there was no evidence of damage so no damages would have been awarded.
The Convention does not require joint MHRT/PB hearings; the need for consecutive hearings does not breach Article 5(4). It does not follow that on the facts of every case the 24-week delay between MHRT and PB will always comply with Article 5(4) or that the SSHD may always delay consideration of suitability of release on licence until after the MHRT decision.
Permission to appeal refused.
Stanley Burnton J
Paul Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair) for the Claimant
Natalie Lieven (instructed by the Treasury Solicitor) for the Defendant