MENTAL DISORDER —Mental health review tribunal — Discharge of patient — Restriction order made after conviction — Patient granted conditional discharge from hospital by review tribunal — Patient recalled under warrant by Secretary of State — Delay in referral to review tribunal — Whether statutory scheme compatible with patient’s Convention rights — Mental Health Act 1983 (c20), ss 37, 41, 42, 75 — Human Rights Act 1998 (c42), Sch 1, Pt 1, art 5(4) — Mental Health Review Tribunal Rules 1983 (SI 1983/942), r 29(cc) (as inserted by Mental Health Review Tribunal (Amendment)Regulations 1998 (SI 1998/1189), r 2.
The statutory scheme dealing with the referral of the case of a recalled mental patient to a mental health review tribunal was not incompatible with the patient’s rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, whether because of the timescale envisaged or for lack of a right of direct access to a court.
The Court of Appeal so stated when: (i) dismissing the appeal of the defendant, the Secretary of State for Justice, from a decision of Holman J sitting in the Queen’s Bench Division on 23 April 2007 (reported as R (Rayner) v Secretary of State for the Home Department  1 WLR 2239), dismissing the claim of the claimant, Daniel Rayner, for judicial review of, inter alia, the failure of the Secretary of State to refer the case to a mental health review tribunal within the one-month period required by s75(1) of the Mental Health Act 1983, but allowing a claim for damages in respect of claimed unlawful acts for the purposes of section 6 of the Human Rights Act 1998 and/or breaches of articles 5(4) pursuant to sections 8 and 9(3) of the 1998 Act and article 5(5) of the Convention; and (ii) dismissing the claimant’s cross-appeal against Holman J’s finding that the primary and subordinate legislation could be read in a way which was compatible with the claimant’s Convention rights notwithstanding a lack of direct access to a court.
KEENE LJ said that: (i) the requirement that the court’s decision should be made “speedily” (art 5(4) of the Convention, as scheduled to the Human Rights Act 1998) raised questions about the timescale of the applicable referral procedures under s 75(1) of the 1983 Act; and (ii) the wording of art 5(4) to the effect that the detainee “shall be entitled to take proceedings” by which the lawfulness of his detention shall be decided gave rise to the question whether the duty on the Secretary of State under s75(1) to make a reference to a mental health review tribunal sufficed to meet the requirement, and if not, whether any other available legal procedures made up the deficiency.
As to (i) timescale: s75(1) could be read compatibly although on the facts the Secretary of State conceded he was in breach. The Secretary of State challenged Holman J’s reference to art 5(4) requiring an “immediate reference”, and his statement that a case should be referred “at once” unless the circumstances of the applicant or his case positively required otherwise. However, one could not accept that the Secretary of State was entitled generally to take the statutory maximum of one month before making a reference: where the liberty of the subject was at stake, and where his action was to be seen as at least a principal method of getting the issue of the lawfulness of the detention before a court, the concept of speediness required a more energetic and rapid approach; and where the detained person had no direct right to apply to a tribunal it was all the more important that the Secretary of State should act with despatch. Nevertheless, there was force in criticism of Holman J’s use of the word “immediate” to describe the reference required by the Convention. Certain checks might for example be required before a reference could be made, and the word “speedily” in art 5(4) was a less stringent requirement than arose from the word “promptly” in art5(3). The European Court of Human Rights had dealt with the issue on a case-by-case basis, and it would be wrong for domestic courts to adopt a different approach to the issue whether a determination had been obtained “speedily” and to start prescribing quantified periods of time within which a determination had to be achieved. As for the obligation to refer under s 75(1), the test, applied from R (C) v London and South and West Region Mental Health Review Tribunal  1 WLR 176, para 43, per Lord Phillips of Worth Matravers MR, was to ask “whether there was a failure to proceed with reasonable despatch, having regard to all the material circumstances”. Thus, although Holman J, before finding that a reference should have been made within almost a week after the issue of the warrant of recall, had stated that an “immediate reference” was required, the appeal was dismissed on different grounds because the identified period was in any event appropriate here, and a breach of art 5(4) had been admitted.
As to (ii) the right to take proceedings: the question was whether the absence of a direct right permitting the claimant to make his own application to a tribunal after recall (the Secretary of State being instead required to make a reference, and the patient then being treated as having made an application: r 29 of the 1983 Rules) involved a breach of art 5(4) in so far as the wording of the latter provision might seem to require a right to “take proceedings”. Holman J regarded the statutory duty on the Secretary of State to refer the recalled patient’s case to a tribunal as amounting to an automatic review procedure which sufficed to achieve compliance in light of the words “at any rate where there is no automatic periodic review” in X v United Kingdom  4 EHRR 188, para 52, but the claimant contended that, although until recently the Strasbourg court had accepted that automatic review would suffice, recent decisions had indicated a need for the detained person to have a direct personal right of access to the reviewing court. A review of authority confirmed that, although there had been at least a shift of emphasis towards a greater stress on the requirement that a detained person should be able to take the initiative himself to start proceedings to challenge the lawfulness of his detention, domestic English law gave greater protection to the patient since he had a direct right, by judicial review, to enforce the Secretary of State’s duty under s75(1) of the 1983 Act to make a reference. While s75(1) of the 1983 Act, if it stood alone, might not now be regarded as sufficient to achieve the protection of art 5(4) rights, the combination of the statutory mechanism, the right of the patient to enforce the Secretary of State’s statutory duty, as interpreted in light of the Convention, by way of judicial review, and the right of the patient to challenge the lawfulness of his detention directly in the courts on its substantive merits by judicial review and/or habeas corpus, did suffice to comply with art 5(4). The patient had direct access as of right to the courts and could obtain swift redress if he was being unlawfully detained.
BLACK J and WARD LJ agreed.
R (Rayner) v Secretary of State for Justice  EWCA Civ 176;  WLR (D) 85
CA: Ward and Keene LJJ, Black J : 12 March 2008
Appearances: Paul Bowen (Needham Poulier & Partners) for the claimant; Jeremy Hyam (Treasury Solicitor) for the Secretary of State
Reported by: Matthew Brotherton, barrister