R (Lee-Hirons) v SSJ [2016] UKSC 46, [2016] MHLO 38

"A man is convicted of an offence. Satisfied that he is suffering from mental disorder, the court makes an order for his detention in hospital. Satisfied that it is necessary for the protection of the public, the court also makes a restriction order, which removes from the hospital the power to discharge him. In due course a tribunal directs his discharge from hospital on conditions. Afterwards, however, the Secretary of State for Justice (“the Minister”) exercises his power to recall the man to hospital, where he is subject to renewed detention. This appeal is about the explanation for the recall which the law requires the Minister to provide to the man both at the time of his recall and soon afterwards."

Related judgments

R (Lee-Hirons) v SSJ [2016] UKSC 46, [2016] MHLO 38


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

Supreme Court

Regina (Lee-Hirons) v Secretary of State for Justice

[2016] UKSC 46B

2016 April 26; July 27

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore , Lord Wilson , Lord Reed , Lord Toulson JJSC

Human rights — Liberty — Restricted patient — Patient recalled to hospital — Brief reasons for recall given orally when warrant executed — Further oral but not written reasons given 15 days later — Whether reasons given adequate — Whether breaching Convention right to reasons for detention — Whether rendering detention unlawful — Whether damages payable — Human Rights Act 1998 (c 42), s 8, Sch 1, Pt I, art 5.1, 5.2

Mental disorder — Secretary of State’s powers — Restricted patient — Recall to hospital — Department of Health circular requiring provision of oral and written reasons within three days of readmission — Reasons given orally when warrant for recall executed — Further oral but not written reasons given 15 days later — Whether failure to provide reasons rendering detention unlawful — Whether damages payable — Mental Health Act 1983 (c 20), s 42(3) — Human Rights Act 1998, s 8, Sch 1, Pt I, art 5.1, 5.2

The claimant, who suffered from a personality disorder and chronic paranoid delusional disorder, was detained in a secure hospital pursuant to hospital and restriction orders made under the Mental Health Act 1983. Following a review by the First-tier Tribunal, he was conditionally discharged and he moved to a registered care home subject to conditions. Subsequently those responsible for his care invited the Secretary of State to consider recalling him to hospital for a number of reasons, including that his mental health had deteriorated, that he was likely to abscond and that he was likely to breach the conditions of his discharge. The Secretary of State immediately recalled the claimant to hospital pursuant to section 42(3) of the 1983 Act. The warrant recalling the claimant gave no reason for his recall and at the time of its execution the claimant was told only that he was being recalled because his mental health had deteriorated. A Department of Health circular stated that a patient being recalled to hospital under section 42(3) should be told the reasons for his recall as soon as possible after readmission and that in any event oral and written explanations should be provided within three days of his readmission. No such explanations were given to the claimant. Fifteen days after his recall, the claimant was read a copy of the report which had formed the basis of his recall but he was not provided with any explanation in writing. The claimant sought judicial review, contending, inter alia, that there had been an unlawful failure to explain the reasons for his recall and that that failure had affected the legality of his detention or, alternatively, that it had generated a right to a declaration and damages at common law and/or under section 8 of the Human Rights Act 1998. The Secretary of State conceded that he had breached both the policy set out in the circular and the claimant’s right under article 5.2 of the Convention for the Protection of Human Rights and Fundamental Freedoms to be informed promptly of the reasons for his recall but otherwise he defended the claim. The judge dismissed the claim. The Court of Appeal dismissed the claimant’s appeal, holding that the conceded breaches did not render unlawful either what had been a lawful recall or the claimant’s subsequent detention.

On appeal by the claimant—

Held, appeal dismissed. The way in which the Secretary of State both reached and implemented a decision to recall a restricted patient to hospital was a function of great importance which he had to approach with scrupulous care. The explanation given to the claimant at the time of his recall complied with the published policy and satisfied the Secretary of State’s duty at common law to inform the claimant of the ground for his recall. The demands of article 5.2 of the Convention in relation to the explanation required to be given to the claimant at the time of his recall did not extend beyond the demands of the common law and, therefore there had been no violation of that article at that stage. There was no link, let alone a direct link, between the Secretary of State’s wrongful failure for 12 days to provide to the claimant an adequate explanation for his recall and the lawfulness of his detention and, therefore, that failure did not make the claimant’s detention for those 12 days unlawful at common law or under article 5.1 of the Convention. The claimant was not entitled to damages for the breach of his common law right to receive an adequate explanation for his recall within the time set out by the policy since that breach did not amount to a tort and there was nothing to suggest that damages would have been available in an ordinary action against the Secretary of State in that respect. The claimant had failed to establish that the effects on him of the violation of his rights under article 5.2 were sufficiently grave to warrant the payment of any damages under section 8 of the 1998 Act. A formal declaration would not add anything to the recording in the court’s judgment of the Secretary of State’s concessions (paras 23–25, 32, 39, 41, 43, 46–47, 48–53).

Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157 and R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245, SC(E) applied.

X v United Kingdom (1981) 4 EHRR 188 considered.

Decision of the Court of Appeal [2014] EWCA Civ 553M; [2015] QB 385 affirmed.


Jenni Richards QC and John McKendrick QC (instructed by Stephens Scown, St Austell) for the claimant.

Martin Chamberlain QC and Oliver Jones (instructed by Treasury Solicitor) for the Secretary of State.

Reported by: Jill Sutherland, Barrister

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