Factual and Procedural Background
This appeal and cross-appeal concern statutory provisions under the Mental Health Act 1983 ("the 1983 Act") related to convicted persons detained in hospital due to mental conditions and their rights under Article 5(4) of the European Convention on Human Rights ("ECHR") to a speedy judicial determination of the lawfulness of their detention. The appeals arise from a judgment of Holman J dated 23 April 2007 in the Administrative Court.
The case involves a detained patient ("the Respondent") who was conditionally discharged by a Mental Health Review Tribunal ("MHRT") but subsequently recalled to hospital under a warrant issued by the Secretary of State. The Secretary of State failed to refer the patient's case to the MHRT within the one-month statutory period required by section 75(1) of the 1983 Act. The MHRT hearing was eventually held after some delay, resulting in the patient's conditional discharge. The legal issues focus on the compatibility of the statutory scheme and its operation with Article 5(4) ECHR, particularly regarding the timeliness of the Secretary of State's referral and the patient's right to initiate proceedings.
Legal Issues Presented
- Whether the statutory time limits under section 75(1) of the 1983 Act and Rule 29 of the Mental Health Review Tribunal Rules comply with the requirement under Article 5(4) ECHR for a "speedy" judicial determination of the lawfulness of detention.
- Whether the statutory duty on the Secretary of State to refer a recalled restricted patient’s case to the MHRT suffices to meet the Article 5(4) requirement that the detainee have a right "to take proceedings" to challenge the lawfulness of detention, in the absence of a direct right for the patient to apply to the MHRT within six months of recall.
Arguments of the Parties
Appellant's Arguments (Patient's Representative)
- The one-month maximum period allowed for the Secretary of State to refer the patient’s case to the MHRT, combined with the eight-week period allowed for the MHRT hearing, is incompatible with the requirement for a speedy decision under Article 5(4).
- The patient should have a direct right to initiate proceedings to challenge detention; reliance solely on the Secretary of State’s duty to refer is insufficient.
- Any delay exceeding eight weeks between return to hospital and determination requires justification; otherwise, it breaches Article 5(4).
- Recent Strasbourg case law indicates a shift towards requiring detainees to have a direct personal right to challenge detention, as seen in cases such as Rakevich v. Russia, Gorshkov v. Ukraine, and Kucheruk v. Ukraine.
- Judicial review, while capable of substantive review, cannot fully comply with Article 5(4) because the Administrative Court cannot itself order conditional release, only direct courts such as MHRT can.
Appellee's Arguments (Secretary of State)
- The statutory scheme, including section 75(1), is compatible with Article 5(4) as it imposes a mandatory duty on the Secretary of State to refer the patient’s case within one month, and the MHRT constitutes a court empowered to decide lawfulness and order release.
- The Secretary of State’s duty to refer is not discretionary and must be performed within a specified time, ensuring detainees’ rights under Article 5(4).
- The patient has access to judicial review and habeas corpus to enforce the Secretary of State’s duty and to challenge detention directly, providing sufficient safeguards.
- Recent Strasbourg decisions emphasize that the detainee’s access to courts should not depend on the goodwill of authorities; however, the 1983 Act’s mandatory referral duty addresses this concern.
- The Administrative Court has the power to order the Secretary of State to discharge a patient conditionally, satisfying the requirement to order release under Article 5(4).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| De Wilde, Ooms and Versyp v. Belgium [1971] EHRR 373 |
Establishes that Article 5(4) provides a free-standing right to a speedy judicial determination of lawfulness of detention. |
The court accepted that MHRT qualifies as a "court" under Article 5(4) empowered to decide lawfulness and order release. |
| R v. A (No. 2) [2001] UKHL 25 |
Legislation must be read compatibly with Convention rights where possible; declaration of incompatibility is last resort. |
Section 75(1) can be interpreted compatibly with Article 5(4) by allowing prompt references within the one-month limit. |
| E v. Norway [1994] 17 EHRR 30 |
Eight weeks delay between institution of proceedings and judgment is prima facie incompatible with "speedy" requirement. |
Supported the view that delays exceeding eight weeks require justification to comply with Article 5(4). |
| Roux v. United Kingdom (friendly settlement) |
UK undertook to amend MHRT Rules to fix two-month time limit for hearings after recall, respecting Convention rights. |
Formed basis for rule 29(cc) fixing hearing dates between five and eight weeks after referral. |
| R (on application of C) v. MHRT London and South West Region [2001] EWCA Civ 1110 |
Eight weeks as maximum period for MHRT hearing is compatible with Article 5(4) if hearings are scheduled as soon as reasonably practicable. |
Adopted as test for reasonable despatch in scheduling hearings and applied analogously to Secretary of State’s referral obligations. |
| X v. United Kingdom [1981] 4 EHRR 188 |
Automatic periodic judicial review suffices for Article 5(4); detainee entitled to proceedings at reasonable intervals. |
Distinguished on facts as MHRT then was advisory only; now Administrative Court has mandatory powers. |
| Weeks v. United Kingdom [1988] 10 EHRR 293 |
Obligation of Secretary of State to refer recalled life prisoner to Parole Board satisfies Article 5(4). |
Supports view that automatic referral suffices where statutory duty exists. |
| Rakevich v. Russia (2003), Gorshkov v. Ukraine (2005), Kucheruk v. Ukraine (2007) |
Recent Strasbourg jurisprudence emphasizing detainee’s direct right to initiate proceedings under Article 5(4). |
Indicates evolution in case law requiring detainees to have direct access to courts, not solely dependent on authorities’ referral. |
| R (H) v. Secretary of State for Health [2005] UKHL 60 |
Judicial review can enforce Secretary of State’s duty to refer and protect detainee’s Convention rights. |
Supports the sufficiency of judicial review and statutory referral combined to comply with Article 5(4). |
| Secretary of State for the Home Department v. MB [2007] QB 415 |
Judicial review can involve substantive merits review including oral evidence and cross-examination, meeting Article 6 requirements. |
Confirms that judicial review is capable of substantive review of detention decisions under the Human Rights Act 1998. |
| R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 |
Judicial review of detention must involve a proper merits hearing, not just a "Super-Wednesbury" standard. |
Supports the ability of courts to conduct substantive review of detention lawfulness. |
| Tyrer v. United Kingdom [1978] 2 EHRR 1 |
Convention is a "living instrument" requiring evolving interpretation. |
Justifies the court’s recognition of evolving Strasbourg jurisprudence on detainee rights. |
Court's Reasoning and Analysis
The court began by considering the statutory scheme under the 1983 Act, focusing on section 75(1), which requires the Secretary of State to refer a recalled restricted patient’s case to the MHRT within one month of the patient’s return to hospital. The MHRT Rules require the hearing to be fixed between five and eight weeks after referral.
The court accepted that these time limits can be interpreted compatibly with Article 5(4) ECHR, which guarantees a right to a speedy judicial determination of detention lawfulness. The Human Rights Act 1998 obliges courts to read legislation compatibly with Convention rights, and the Secretary of State’s duty to refer within one month does not prevent prompt referral.
On the facts, the Secretary of State acknowledged breach of this duty and Article 5(4) due to delay in referral. The court agreed with the lower court that the referral should have been made within days, not weeks, after the patient’s return to hospital, considering the liberty interests at stake.
The court analyzed Strasbourg case law, noting a recent shift emphasizing detainees’ direct right to initiate proceedings, as opposed to reliance solely on automatic or authority-initiated reviews. However, the court distinguished the domestic statutory scheme, which imposes a mandatory duty on the Secretary of State to refer and provides the patient with judicial review and habeas corpus rights to enforce that duty and challenge detention.
Judicial review under the Human Rights Act 1998 now allows substantive merits review, including oral evidence and cross-examination, sufficient to comply with Article 5(4). The Administrative Court can make mandatory orders directing conditional release, thus fulfilling the Convention requirement to order release if detention is unlawful.
Consequently, while section 75(1) alone might not meet Article 5(4) requirements under evolving Strasbourg jurisprudence, the combined statutory referral mechanism and the patient’s rights to enforce the duty and challenge detention directly suffice to protect Convention rights.
The court rejected the argument that the patient must have a direct statutory right to apply to the MHRT within six months of recall, finding the existing framework adequate.
Holding and Implications
The court DISMISSED both the appeal and cross-appeal.
The holding confirms that the statutory scheme under the 1983 Act, including the Secretary of State’s duty to refer recalled patients to the MHRT and the patient’s access to judicial review and habeas corpus, complies with Article 5(4) ECHR. The decision clarifies that prompt referral by the Secretary of State is required and that delays breach the Convention rights of detainees. However, the patient need not have a direct statutory right to initiate MHRT proceedings within six months of recall, as judicial review provides an effective remedy.
No new precedent was established beyond affirming compatibility of the statutory scheme with Article 5(4) when properly operated and enforced.