Ward v Commissioner of Police for the Metropolis [2003] EWCA Civ 1152

Case No B3/2002/2364[2003] EWCA Civ 1152
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
MR RECORDER LAYTON, QC
Venue Royal Courts of JusticeDate Wednesday 30 th July 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE SCHIEMANNLORD JUSTICE LATHAM
Between
SUSANNAH WARDAppellantTHE COMMISSIONER OF POLICE FOR THE METROPOLIS & EPSOM & ST HELIER NHS TRUSTRespondents
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Jonathan Cohen (instructed by The Pro Bono Unit) for Appellant 020 7827 4000 Mr Paul Michell (instructed by Directorate of Legal Services, London) for the 1 st Respondent Miss Fenella Morris (instructed by Capsticks, London) for the 2 nd Respondent
JudgmentAs Approved by the CourtCrown Copyright ©
[1]This appeal concerns the validity of a warrant under section 135 of the Mental Health Act 1983 pursuant to which the appellant was removed to and detained overnight at a mental hospital. This issue arises out of proceedings brought by the appellant in March 2001 under section 139 of the Mental Health Act 1983 (“the Act) with the permission of Smedley J. The appellant claimed damages for false imprisonment on the grounds that her arrest by the police officer who executed the warrant and her detention by the hospital thereafter were unlawful because the warrant was defective alternatively its execution unlawful and that those actions were done without reasonable care, so as to deprive them of their protection under section 139 of the Act.[2]Procedurally, the action took a somewhat convoluted course. Suffice it to say that the second respondents failed to file a defence; and on the 30th June 2001, judgment was entered against them. In December 2001, directions were given as to the trial between the appellant and the first respondents. It was fixed ultimately for the 10th July 2002 with an estimated length of three days. In May 2002 the appellant’s legal aid certificate was withdrawn, and the trial date was vacated. On the 27th June 2002, the court fixed a new trial date of the 21st October 2002. Thereafter the appellant, now in person, applied for trial by jury. This was dismissed in her absence by HHJ Ryland on the 16th August 2002; the appellant did not appeal. The second respondents then made application to set aside the judgment entered against them; and that application was ordered to be heard at the date fixed for the trial. On the first day of the hearing, the judge, Mr Recorder Layton QC, determined that he should decide the question of the validity of the warrant and its execution as a preliminary issue. Having considered the warrant and the arguments, he concluded that the warrant and its execution were both valid and that accordingly the arrest and detention of the appellant was lawful. He set aside the judgment against the second respondents, and dismissed the appellant’s claims against both the first and second respondents.[3]Although the notice of appeal prepared by the appellant herself raises a number of issues, it has been accepted on her behalf by counsel appearing for her pro bono that there is essentially only one arguable ground of appeal, namely that the judge’s decision on the preliminary issue was wrong.[4]The relevant statutory provision is section 135 of the Act. This provides: “(1) If it appears to a justice of the peace on information on oath laid by an approved social worker, that there is reasonable cause to suspect that a person believed to be suffering from a mental disorder –(a) has been, or is being, ill treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or(b) being unable to care for himself, is living alone in any such place, the Justice may issue a warrant authorising any constable to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care. …… (4) In the execution of a warrant issued under sub-section (1) above, a constable shall be accompanied by an approved social worker and by a registered medical practitioner…..” (a) has been, or is being, ill treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or (b) being unable to care for himself, is living alone in any such place,[5]The warrant in question was granted on the 10th July 1997 at the Sutton Magistrates’ Court on the information of an approved social worker, David Baker, in the following form, which was the form submitted by the social worker:
“Date: 10.7.97 Informant: David Alan Baker A.S.W. (Approved Social Worker) London Borough of Sutton. Address: Locality 1, Chiltern Wing, Sutton Hospital, Corswold Road, Sutton, Surrey, SH2 5NF. Information: The above named informant upon oath pursuant to section 135(1) of the Mental Health Act 1983 states that there is reasonable cause to suspect that a person Mrs Susannah Ward believed to be suffering from a mental disorder (a) ….kept (sic) otherwise than under proper control at the address below (b) being unable to care for herself is living at Ashleigh, 22 Golfside, Cheam Surrey SH2 7EZ. And the grounds for the said suspicion are: That since 1993, the client appears to have lost all insight into her irrational, bizarre and aggressive behaviour towards her family (near and extended) and to those involved in her children’s’ education. She refuses access to the professionals and any help offered. Her husband has exercised his right under the Mental Health Act 1983 and requested a formal Mental Health Assessment to be carried out at Chiltern Wing, Sutton Hospital. And the undersigned Justice of the Peace being satisfied that there is such reasonable cause to suspect; Direction: [To] [ ] a constable of the Metropolitan Police force You are hereby authorised on one occasion within one month of the date hereof on to enter, if need be by force, premises at [ ] accompanied by Doctor AN Forrest Consultant Psychiatrist, Mrs H Carcano-Harley an approved social worker and Dr DVP Thomas a medical practitioner. And if thought fit to remove the said Susannah Ward to a place of safety”
The warrant is then signed by a Justice of the Peace. And the grounds for the said suspicion are: Direction: [To] [ ] a constable of the Metropolitan Police force And if thought fit to remove the said Susannah Ward to a place of safety”

Direction: [To] [ ] a constable of the Metropolitan Police force

[6]This warrant was executed on the 24th July 1997 by a police officer, PC Welsh. He was accompanied by Mrs Carcano-Harley, an approved social worker, and Dr Francis, the Senior Registrar of Dr Forrest. The General Practitioner was not present. It was executed at the appellant’s address, Ashleigh, 22 Golfside, Cheam. The appellant was in her car in the drive at those premises at the time. There is a dispute, which is not relevant to the present issue, as to the precise circumstances of her removal. She was taken to Sutton Hospital where she remained until the next day. She was then discharged there being no medical justification for her continued detention.[7]The Recorder concluded that although, as Smedley J himself had said at time that he gave leave for the action to be brought, the warrant was sloppily drafted, he was nonetheless satisfied that the place at which the warrant could be executed had been adequately identified in the preamble and information, even though not specifically identified in the authorisation itself. He further concluded that section 135(4) did not require the approved social worker or the registered medical practitioner to be identified by name. The fact, therefore, that neither Dr Forrest nor Dr Thomas were present did not affect the validity of the warrant. A registered medical practitioner, that is Dr Francis, was present, which was all that was required by the section. He accordingly concluded that the warrant and its execution were both valid.[8]Mr Cohen, on behalf of the appellant, submits that the judge was wrong in both respects. He submits that the warrant should not be construed so as to identify the premises which the police constable was entitled to enter. Secondly, even if the section does not require the approved social worker and registered medical practitioner to be identified, the fact that they were amounted to an effective condition upon which the warrant was granted which precluded its execution otherwise than in the presence of those who were named in it. Alternatively, he submits that if the magistrate had no power to impose a condition as to the names of those who were to accompany the police officer, the warrant was invalid.[9]The respondents submit that the wording of the warrant left no room for any reasonable doubt as to the premises to which it was directed, and that, accordingly, although unhappily drafted, it was nonetheless valid in that respect. As far as the named approved social worker and registered medical practitioners were concerned, there was no requirement in the section that they should be named, and accordingly that part of the warrant was surplusage, not affecting its validity, alternatively amounted to the imposition of a condition which was beyond the powers of the magistrate and that the warrant was therefore of no effect pro tanto.[10]The first of these two issues is essentially a matter of impression. The recital in the warrant of the Information identifies two bases upon which it is said the warrant was justified. The first is that she was being kept otherwise than under proper control at 22, Golfside, Cheam. The second is that she was unable to care for herself and was living at 22, Golfside, Cheam. It seems to us that in these circumstances, the only address to which reference could sensibly be being made in the Direction is to that address. In these circumstances we do not consider that the warrant is invalid on the grounds that the address was there left blank.[11]The second issue raises a number of difficult questions and requires some analysis of the structure of the Act. Part of the problem arises out of the fact that the form of the warrant used at the time was not entirely appropriate to the relevant statutory provisions. It has a number of features which were clearly referable to other statutory regimes, in particular the regime relating to search warrants under section 15 and 16 of the Police and Criminal Evidence Act 1984. Further, the warrant is expressed to have effect for only one month which is the statutory period for the effectiveness of such search warrants, whereas there is no time limit expressed in section 135 of the Act. The fact that such a condition was inserted, is, however, a matter of some relevance to the issues which we have to consider.[12]It seems to us clear from the structure of section 135 that there are two separate questions which have to be addressed, firstly the validity of the warrant under section 135(1) and secondly the lawfulness of the warrant’s execution under section 135(4). There is much force in the respondents argument that section 135(1) of the Act is all that needs to be considered when determining the validity of the warrant, and that does not require the magistrate to consider when determining whether to grant the warrant, the proposed means of execution under section 135(4) of the Act. In other words, there is no necessity in a valid warrant under section 135(1) to do more than relate the information upon which the warrant has been granted, and identify the premises which may be entered. This is the basis of the respondents’ argument that, as a consequence, the reference in the warrant to a named approved social worker and medical practitioners were mere surplusage, and of no effect.[13]But it seems to us that there are difficulties with this submission. They arise out of the nature of the power which is being exercised, which is a draconian power authorising the removal of a person from, in this case, her home, and that person’s detention in a place of safety, in practice a hospital, for up to 72 hours under section 174(3) of the Act. If the facts with which we are concerned had occurred after October 2000, it would have involved a consideration of the extent to which the statutory provisions are compatible with Article 5 of the European Convention on Human Rights. Whilst it is not directly in question in the present case because of the date of the matters with which we are concerned, it is nonetheless salutary to bear in mind the protection against deprivation of liberty provided by that Article.[14]The critical question which we have to answer is whether or not implicit in the power of the magistrate to grant a warrant under section 135(1) of the Act is a power to impose conditions on its exercise, for that is the effect of the appellant’s submissions. There is much to recommend a regime which is capable of determining who should attend with the police officer. Section 135(1) and the warrant, make it plain that the police officer is entitled to remove the person “if thought fit”. Clearly the requirement under section 135(4) for the presence of an approved social worker and a registered medical practitioner is, at least in part, to enable the police officer to come to a proper conclusion as to whether or not it is appropriate to remove the person. That could be a delicate and difficult question to answer, which may be best answered by, for example, the patient’s general practitioner, or another doctor acquainted with the patient’s history. Further, the need to apply any form of restraint may be obviated by the presence of a professional experienced in dealing with mental illness, again particularly if that person has knowledge of, and perhaps most important is known to, the patient. It may therefore be a material consideration for a magistrate in determining whether or not it is appropriate to grant a warrant in a particular case to know the name or names of those who will accompany the police officer under section 135(4).[15]In determining whether or not Parliament has implicitly given the magistrate the power to impose conditions it seems to us to be relevant to take into account the fact that the section itself makes no provision for how long such a warrant is to remain valid. Bearing in mind the nature of mental illness, it would be extremely surprising if Parliament had considered that no time limit could be imposed on the length of such warrant’s validity. We are quite satisfied, therefore, that Parliament must have intended that a magistrate should have the power to impose such a limit. In those circumstances, we can see no justification for concluding that the magistrate’s powers to impose conditions are restricted to the imposition of a condition as to time. It seems to us that any condition which can sensibly relate to the execution of a warrant in a way which protects the interests of the person liable to be removed whilst furthering the object of the grant of the warrant, may be imposed, if a magistrate considers it appropriate in a particular case to do so. As the section entitles any social worker or registered medical practitioner to accompany the police officer, a condition which circumscribes who in either category may accompany the police officer seems to us to be a perfectly proper exercise of the power to grant the warrant given by the section.[16]It follows, in our judgment, that the warrant was valid, but that its execution did not comply with the lawful condition imposed on its exercise. The appellant’s removal was unlawful. We are happy to come to this conclusion because it seems to us that it does justice in this case. Far from being mere surplusage, the names of those identified in the warrant as being those who were to accompany the police officer had clearly been inserted by the person applying for the warrant for good reason. We are not told anything by the magistrate as to the reason why he granted the warrant apart from that which is set out on its face. It follows that we could not be sure that the grant of the warrant was not, in part, due to the fact that those particular people had been identified. It would therefore be an unwarranted assumption that had they not been identified the magistrate would nonetheless have granted the warrant.[17]For these reasons we allow the appeal and remit the matter to the Central London County Court for a determination of the merits of the claim.

Order

Appeal allowed. Should the Respondent’s petition for permission to appeal itself, fail, then the matter should be remitted back to the Central London County Court; costs in the cause; application for permission to House of Lords refused. (Order does not form part of the approved judgment)

Cited in 1 later judgment