B v MENTAL HEALTH REVIEW TRIBUNAL SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWHC 1553 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 1553 (Admin)Case No Case No: CO/1586/2001Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
BClaimantMENTAL HEALTH REVIEW TRIBUNAL SECRETARY OF STATE FOR THE HOME DEPARTMENTFirst Defendant SecondDefendant
Before
Mr Justice Scott BakerMr Paul Bowen & Miss D Teipley (instructed by Scott Moncrieff, Harbour and Sinclair) for the ClaimantMr Tim Mould (instructed by Treasury Solicitor) for the First DefendantMr Martin Chamberlain (instructed by Treasury Solicitor) for the Second DefendantDate 22 July 2002
[1]Mr Justice Scott Baker: Introduction Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”) provides that:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
[2]B, who is the Claimant in these proceedings is a restricted patient under Sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). He was recalled to hospital under Section 42(3) of the 1983 Act by the Secretary of State on 2 February 2001. His case was heard substantively by the Mental Health Review Tribunal (“the tribunal”) on 8, 9 and 10 October 2001 and its decision not to discharge him was promulgated on 18 October 2001. He claims the delay of between 8 and 9 months amounts to a breach of Article 5(4) of the ECHR. All parties agree that a delay of this length is on the face of it unacceptable and requires justification if the court is not to find a breach of Article 5(4). Chronology[3]In order better to understand the issues in this case it is helpful to have in mind the chronology. B is a paedophile with a psychiatric disorder. On 7 February 1992, following conviction for two counts of abducting a child, one of indecent assault and one of assault occasioning actual bodily harm, he was made the subject of a restriction order under Sections 37 and 41 of the 1983 Act. Whilst on leave from hospital he abducted and indecently assaulted a young girl and on 23 August 1996 was sentenced to 7 years imprisonment. He was felt at that stage to be untreatable. On 10 April 1997 he was discharged from hospital on condition that he reside in prison.[4]On 4 October 2000 Dr Simon Beer wrote to the Home Office saying there were real questions about his treatability and suggesting that an assessment should be carried out by a special hospital. He was subsequently assessed by Dr Horne from Broadmoor at the request of the Home Office. He reported on 25 January 2001. It will be necessary to refer in some detail to his report later in this judgment.[5]On 2 February 2001, the day B was due to be released from prison, the Secretary of State recalled him to hospital under Section 42(3) of the 1983 Act. The Secretary of State’s concern is obvious. He did not wish to release a dangerous paedophile into the community if he met the criteria for transfer to hospital; and he concluded that he did.[6]On 8 February 2001 the Secretary of State referred B’s case to the tribunal as he was obliged to do under Section 75(1) of the 1983 Act within one month of the patient’s return to hospital. The tribunal fixed B’s case for hearing on 28 March 2001. This was in accordance with Rule 29(cc) of the Mental Health Review Tribunal Rules as amended (“the 1983 Rules”) which requires the tribunal to fix a date for the hearing not later than 8 weeks nor earlier than 5 weeks from the date of receipt of the reference.[7]On 8 March 2001 the Broadmoor Hospital Authority produced a statement required by Rule 6 of the 1983 Rules. This included a report by Dr McGregor- Morris, the registrar to the responsible medical officer (RMO), concluding that B is was not treatable. This was received by the Secretary of State on 19 March 2001.[8]On 21 March 2001 the Secretary of State produced the statement required of him by Rule 6(2) of the 1983 Rules, and the following day wrote to the tribunal asking for an adjournment to enable him to instruct an expert in the light of Dr McGregor-Morris’s conclusions.[9]On 26 March 2001 the regional chairman granted an adjournment but without giving B or his solicitors any opportunity to make representations and without giving any reasons for his decision. The same day B’s solicitors wrote objecting in strong terms pointing out that the request for an adjournment ought to have been considered by the tribunal members in full on 28 March following representations. The regional chairman was not however prepared to alter his decision. A file note suggests the tribunal administration was told to “try and negotiate a date as soon as possible.” This, I understand to refer to a date for the substantive hearing.[10]On 27 March 2001 the Secretary of State instructed Dr Meux. On 19 April 2001 the present judicial review proceedings were commenced claiming at that time a quashing order in respect of the decision to adjourn and a mandatory order requiring the tribunal to hear the reference forthwith. On 23 April 2001 Crane J. granted permission and the tribunal gave an undertaking to list the application to it for hearing within fourteen days or as soon thereafter as reasonably practicable.[11]On 30 April 2001 Dr Meux submitted his report, which was adverse to B, and on 4 May 2001, the date the tribunal had fixed for the hearing, B’s solicitors applied for an adjournment to enable Dr Payne, the RMO, to produce a report and to allow them time to respond to it if so advised. The hearing was fixed for one day on 29 June 2001.[12]On 18 May 2001 Dr Payne submitted his report which likewise was adverse to B. It concluded that he suffered from a personality disorder but that it was his sexual deviancy rather than his personality disorder that caused him to abuse children and in any event his personality disorder was not treatable.[13]The next event of significance was on 5 July 2001 when Dr Amory Clarke produced a report which concluded, contrary to the views of Dr Payne and Dr Meux, that B did not suffer from a personality disorder. There is no indication when, and in what circumstances, 29 June 2001 was vacated and the hearing date of 24 to 27 July fixed instead. It seems fairly clear that for one thing it was felt the hearing would take more than one day. What is known is that neither Dr Meux or Dr Payne was available for the 24 July hearing and the hearing was re-fixed for 8 to 10 October 2001. The tribunal concluded at that hearing that B’s propensity to abuse children was at least in part due to his personality disorder and that his personality disorder was treatable. The tribunal communicated its decision on 18 October 2001, one day outside the 7 day period prescribed by Rule 24(1) of the 1983 Rules, but nothing in my judgment turns on this.[14]In separate proceedings (CO/2379/2001) B sought to challenge the Secretary of State’s decision to recall him to hospital. B’s renewed application was refused by Collins J. at an oral hearing on 27 November 2001. This had previously been adjourned pending the outcome of the tribunal hearing. Finally, Sullivan J. gave permission in the present application on amended grounds on 15 April 2002. The Claimant’s Case[15]Mr Paul Bowen, for the Claimant, has directed his main attack at the decision to adjourn on 26 March 2001. Broadly, he submits that(i) the decision was made in breach of natural justice because B’s representatives were not given an opportunity to be heard and(ii) an adjournment was inappropriate anyway because the Secretary of State was at fault in leaving the instruction of an expert to such a late stage. He argues that all the subsequent delay flows from that adjournment and that it is nothing to the point if much of that delay was directly attributable to the instruction of an expert on his side. The Tribunal’s position[16]Rule 16 of the 1983 Rules provides that the tribunal may at any time adjourn a hearing for the purpose of obtaining information or for such other purposes as it may think appropriate. Rule 16(2) provides that before adjourning any hearing the tribunal may give such directions as it thinks fit for ensuring the prompt consideration of the application at an adjourned hearing. Where no date is fixed for an adjourned hearing at least fourteen days notice is required in the absence of consent to some shorter period (Rule 16(4)).[17]Rule 13 gives the tribunal power to give such directions as it thinks fit to ensure the speedy and just determination of the application before it.[18]Rule 5 gives the regional chairman power to exercise the powers of the tribunal at any time before the tribunal itself hears the application. Those powers include those under Rule 13 but not those under Rule 16.[19]Mr Michael Christie, the regional chairman in the present case, says in a statement that he was able to read the file carefully and was satisfied that a postponement was both justified and the proper action to take in accordance with the Rule 13. Were the matter to have been left to the tribunal hearing he was of the opinion that the tribunal would almost certainly have granted the Secretary of State’s application for an adjournment in the exercise of its power under Rule 16. By granting the adjournment in advance, unnecessary attendance could be avoided and the overall determination of the Claimant’s case speeded up. He says he had in mind the impact of postponement on the rights of the Claimant to a speedy hearing and determination of his case both under domestic law and in accordance with the ECHR, but that postponement for a limited period of time was the proper course to take.[20]He says he did not consider himself to be under a legal duty to consult the Claimant’s solicitor before he postponed the hearing. He took account of her representations afterwards but they did not cause him to change his mind. He said he did not believe he was under an obligation to give reasons but that it was clear the Claimant’s solicitors were well aware of what the reasons were. He says at paragraph 13 of his statement:
“More generally, it is my experience as regional chairman that the tribunal regularly receives requests for postponement in advance of fixed hearing dates, in order to allow time for the preparation of an independent expert report in relation to the patient in question. The majority of these requests come from the patients from themselves. In my experience, it is relatively unusual for the Home Secretary to seek a postponement in this way. I receive perhaps four or five such requests during the course of a typical week. It is the practice of the tribunal chairman to respond to such requests, if they consider them to be meritorious, by directing the postponement of the hearing to a later date, typically about a month later. In this way, in appropriate cases, the tribunal is able to avoid the unnecessary delays and wasted costs and resources of ineffective hearings, both to the parties and itself. In so doing, the tribunal probably secures smaller lead times taken to dispose of cases at effective hearings than would be the case, in the event that each such request were left to the tribunal to consider at the hearing on an application to adjourn.”
[21]Mr Mould, who has appeared for the tribunal, has not sought to support the decision of Mr Christie to adjourn without giving B’s representatives an opportunity to make representations. He accepts that the failure to afford such an opportunity in the present case was both contrary to good practice and unfair. Now it seems to me that in the light of the conclusions that I have reached about the Secretary of State’s position, to which I shall come to in a moment it was inevitable that this case should be adjourned. However, what Mr Christie appears to have overlooked is the necessity to give case management directions either under Rule 13 (which he himself could have given) or under Rule 16(2) (which the full tribunal could have given). With hindsight it should never have taken until mid October for this reference to be determined. But could anything have been done about it with reasonable foresight? I am satisfied that it could. In the first place it was unsatisfactory, and in my judgment bad practice, for the hearing that was due to take place on 28 March 2001 to have been adjourned without a return date being fixed. Mr Mould accepted that where the liberty of the subject is concerned it is not good practice to adjourn a hearing without any indication when it will be resumed. If for some reason it is impossible to identify a specific date at the moment of adjournment, it is perfectly in order to say that the adjourned hearing will take place not later than a certain date. It appears to have taken a judicial review application to obtain a date in this case.[22]What was required was not only a return date when the case could be heard but also some clear directions to ensure that all the expert evidence was available for the adjourned hearing. It seems to me that to provide for expert evidence to be obtained sequentially is a recipe for delay. I cannot see why the hearing could not have been adjourned on 28 March 2001 on terms giving both the Secretary of State and the Claimant, and if necessary the RMO, leave to file further evidence by a given date. Nor do I see why the experts should not have met at an early stage to try and identify, and if possible narrow, any differences of opinion. Such an exercise generally results in a shorter substantive hearing.[23]Mr Christie should also have given brief reasons for his decision to adjourn, albeit the reason in this case was obvious. There should be no hardship or difficulty in a legally qualified chairman giving reasons. See Dyson L.J. in H v Ashworth Hospital and Others [2002] EWCA CIV 923 at para 82. That too was conceded by Mr Mould, albeit the absence of reasons was not the cause of any problem in this case.[24]In fact what happened was that no directions at all were given when the hearing was first adjourned. On 4 May 2001 the Claimant’s solicitor perfectly reasonably asked for an adjournment to enable the RMO to produce a report and for the Claimant to obtain another report if necessary. It is not clear why such a distant return date (29 June 2001) was fixed or to what extent this was at the instigation of the Claimant.[25]It has been hard to obtain detailed information as to what happened. The tribunal says the dates were fixed with the consent of the parties. At some point, it is not clear when, 29 June 2001 was vacated in favour of 24 July 2001, presumably because it was appreciated that a three day hearing would be required. What seems to me to be inexcusable is to fix a date on which two witnesses were unavailable. Proper case management for which the tribunal is in my judgment ultimately responsible, should have secured the fixing of a date that save in the unforeseeable circumstances would be effective. In the result there was another two and half months delay.[26]Parliament has laid down in Rule 29 (cc) that the tribunal is to fix a date for the hearing between five and eight weeks from the date of receipt of the reference. Whilst all parties accept that this date will not necessarily see the final disposal of the reference, the shortness of this initial period is an indicator pointing to the speed of ultimate disposal. This should be kept clearly in mind when management decisions are being made about the future handling of the case. The period between 28 March 2001 and 18 October 2001 is completely disproportionate to a maximum period of eight weeks from receipt of the reference to the initial hearing. It is impossible, on the evidence that has been produced, to analyse in any detail the fault for the delay. Clearly the Claimant’s solicitors needed time to instruct an expert and it is well known that suitable experts may not be readily available to produce a report within a reasonably short period of time. What is clear in my judgment is that with proper hands-on management by the tribunal after receipt of the Secretary of State’s application to adjourn the eventual hearing should have taken place a great deal earlier than it did. The Secretary of State’s position[27]The cornerstone of Mr Bowen’s argument is that the Secretary of State made an unnecessary and late application for an adjournment to obtain medical evidence.[28]The Secretary of State has, under the 1983 Act, a special statutory role in relation to patients who have been convicted of a serious offence and are judged to be at risk of committing further offences involving serious harm to the public if at large. See R (IH) v Secretary of State for the Home Department and Others [2002] EWCA CIV 646 para 75. In particular he has power to recall a restricted patient to hospital under Section 42(3). Also, a restricted patient cannot be discharged by his nearest relative or RMO; only by the Secretary of State or the Tribunal.[29]Where the Secretary of State recalls to hospital a restricted patient he must, as I have mentioned, refer his case to a tribunal within one month of the recall taking effect. In practice he normally makes the reference very quickly and in the present case it was made within a matter of days. In such a case a patient himself has no right to apply to a tribunal for discharge until six months have elapsed from the date of recall (see Section 70(a)), a matter relied upon strongly by Mr Bowen.[30]Once a reference has been made, Rule 6(1) of the 1983 Rules requires the responsible authority to send a statement to the tribunal and the Secretary of State within three weeks at the latest. Thereafter, within a maximum of two weeks the Secretary of State is required to send to the tribunal a statement of “such further information relevant to the application as may be available to him.” In the majority of cases the Secretary of State decides to submit written comments only and neither calls his own evidence nor appears at the tribunal hearing. The number of cases in which he called expert evidence or was represented was in 2001 only about six out of a total of 1686 cases involving restricted patients. The present case was one of that very small number.[31]The time limits provided for in Rule 29(cc) were introduced by amendment into the 1983 Rules following the friendly settlement by the United Kingdom Government of Roux v United Kingdom App No. 25601/94 in the European Court of Human Rights. That case involved a reference under Article 5(4) in the case of a recalled restricted patient. Since Kay v United Kingdom 40 BMLR 20 it has been necessary for the Secretary of State, in order to justify recall, to have up to date medical evidence showing that the criteria for detention are met. That was not the case previously. See R v Secretary of State for the Home Department ex parte K [1991] 1QB 270.[32]The Secretary of State recalled B on the basis of Dr Horne’s report of 25 January 2001. That decision was unsuccessfully challenged by B. Collins J. refused permission to apply for judicial review on 27 November 2001. Dr Horne’s opinion was that B’s mental disorder – the combination of his personality disorder and his paedophilia – amounted to mental disorder within the meaning of the 1983 Act and that it was of such a nature and degree as to make it appropriate for him to be detained in hospital for treatment. However he did not think it appropriate for him to be recalled to hospital, as treatment in hospital was unlikely to alleviate his condition. Nevertheless, recalling him to a special hospital and thereby preventing him from offending would prevent a deterioration as set out in Section 72(2)(a) of the 1983 Act. Collins J. said at paragraph 15:
“The question therefore is simply this. Is it arguable that the Secretary of State was not entitled to form the opinion that the ‘treatability’ test was satisfied from the terms of Dr Horne’s report. Dr Horne certainly says in terms that preventing him from offending would constitute preventing a deterioration. But he goes on to say that it is his opinion that it is not appropriate that he be detained. 16. The Secretary of State is clearly entitled to disagree with the psychiatrist’s opinion, provided that within it is contained sufficient material to enable him to decide that the tests are satisfied. As it happens, the Secretary of State’s decision turned out to be the correct one and Dr Horne’s to be the wrong one, if one approaches the matter on what happened before the Mental Health Review Tribunal. But, as I have said, that cannot decide whether the original decision was correct.”
It is clear beyond doubt that the recall was lawful.[33]The Secretary of State was prompt in making the reference to the tribunal i.e. within six days of the month permitted. The tribunal sent notice of the reference to B and the responsible authority as it was required to under Rule 29(b) and an appropriate date for the hearing was fixed under Rule 29(cc). The logic underlying the Rule 29(cc) requirement that a date is to be fixed not earlier than five nor later than eight weeks from the reference is that the five week period matches the time for the Rule 6 statements from the responsible authority and the Secretary of State and the eight week limit is designed to ensure an early hearing.[34]The Secretary of State did not know what, if any, issues there would be before the tribunal until he received Dr McGregor-Morris’s report on 19 March 2001 and the responsible authority’s Rule 6 Statement. Mr Chamberlain, for the Secretary of State, makes a number of points about Dr McGregor-Morris’s report. First, he says it was written by a registrar and not the RMO. Second it did not say what the RMO’s views were. Third it was late in that it should have been served with the Rule 6 Statement within three weeks; also although dated 8 March 2001 it was not served until 19 March 2001. Fourth, it raised a new and complicated issue. Dr McGregor-Morris’s view was that B could not be detained for sexual deviancy alone. He did not meet the criteria for a diagnosis of personality disorder and should receive an absolute discharge. Other members of the multi-disciplinary team would have conducted assessments by the date of the tribunal hearing and the issue might well be clarified by them. The social worker, Celia McCormack, said she was not able to make any recommendation to the tribunal because B had only been in Broadmoor for about four weeks and the normal assessment period was three months.[35]It was in my judgment small wonder that the Secretary of State was greatly concerned about the possibility of someone with B’s background being absolutely discharged. It seems to me inevitable that he should have required a further report with a view to possible participation in the hearing.[36]The fact that the responsible authority’s Rule 6 Statement and Dr McGregor- Morris’s report were served late and the picture that inadequate assessment work had been done and with less urgency than should have been required, although not matters that should have prevented an adjournment are matters that should have resulted in the imposition of a strict timetable to ensure that an effective hearing took place in the foreseeable future.[37]I do not accept Mr Bowen’s argument that if Dr Horne’s report was insufficient for his purposes the Secretary of State should have commissioned another report at the time of referral. The rules do not require him to do so. In the vast majority of cases it will be unnecessary and in the present case there was no reason to do so until Dr McGregor-Morris’s report, with its unexpected but provisional conclusions, arrived in his in-tray.[38]It is true that recall of restricted patients falls into a special category and that early review by an independent tribunal is particularly important in this type of case. I note Mr Bowen’s comparison with the requirements for restriction orders under Sections 37 and 41 of the 1983 Act and the requirements for admissions to hospital under Sections 2 and 3. However, its seems to me that the legislation provides an adequate safeguard against inappropriate recall with the five to eight week hearing requirement under Rule 29 (cc). Certainly I do not think that the Secretary of State is required in restricted cases to decide whether to obtain separate medical evidence and to obtain that evidence before the RMO has produced his report under Rule 6(2). Is there a breach of Article 5(4)?[39]A delay does not of itself give rise to a breach of Article 5(4), but it does give rise to the need for an explanation. In R (C) v London and South West Region Mental Health Review Tribunal [2002] 1WLR 176 the Court of Appeal referred to the approach of the Strasbourg Court in Article 5(4) cases, observing that the court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of Article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable dispatch having regard to all the material circumstances. Lord Phillips M.R. cited a passage from the judgment in Sanchez-Reisse v Switzerland (1986) 9EHRR 71, 85, para 55:
“It remains to be established whether these periods comply with the requirements of article 5(4) that decisions be taken ‘speedily’. In the court’s view, this concept cannot be defined in the abstract; the matter must – as with the ‘reasonable time’ stipulation in Article 5(3) and Article 6(1) (see the established case law) – be determined in the light of the circumstances of each case.”
[40]R (C) v The London and South West Region Mental Health Review Tribunal was a Section 3 case and the Court of Appeal held that the obligation in Article 5(4) was not met where cases were routinely listed to be heard within a target period of eight weeks regardless of the circumstances. The precise point at issue was therefore rather different, but the principle seems to me to be the same that what is critical is to look at the facts of the particular case under consideration.[41]Mr Bowen submits that the overall delay is a breach of Article 5(4) and that the delay has not been justified by the state. It is his case that the delay was caused by four factors: i) the Secretary of State not producing his evidence in time; ii) the regional chairman’s decision to adjourn; iii) failure to timetable and direct the future preparation of the case; and iv) lack of resources within the system. As to(i) the Secretary of State was not in my view at fault. As to(ii) and(iii) an adjournment was inevitable but there should have been a directions hearing on notice to all parties. At it the tribunal should have planned the future of the case after taking into account that the responsible authority was already late with its Rule 6 statement. As to(iv) to what extent, if at all, lack of resources was responsible for any of the later delay is simply not apparent on the evidence. It may or may not have been a contributory factor. The critical point is that because the tribunal did not manage the case it was not heard timeously.[42]I was referred to Cottenham v The United Kingdom App No.36509/97 in which the ECHR on 11 May 1999 declared the application inadmissible. That was a case where there was a 10 month delay between the receipt of an application by the tribunal and its determination. The Court said that the total length of the proceedings complained of did not suggest any lack of diligence on the part of the judicial authorities dealing with the case. It said that the tribunal could not be criticised for allowing the applicant time for the preparation of a report by a psychiatrist of her choice, or for delaying the hearing until a date when the applicant’s solicitor was free to represent her. To refuse these requests might have been to deny the applicant a fair hearing. However, the court observed that it did not rule out the tribunal being under a duty in certain circumstances to ensure that the application was proceeded with expeditiously.[43]Mr Bowen draws attention to two important factors. First, the present case is a recall case in which the application to the tribunal has to be instigated by the Secretary of State. Second, the initial adjournment in the present case was sought by the Secretary of State. In Cottenham the continuing grounds for detention had already been reviewed twice since her recall and the delay was primarily at the behest of her solicitor. Cottenham is in my judgment of limited assistance because the ECHR refused to entertain the application on the facts of that case.[44]In R (KB) and Others v The Mental Health Review Tribunal and Another [2002] EWHC 639 (Admin) Stanley Burnton J. considered a number of cases in which hearings arranged by the tribunal had been repeatedly adjourned. The basic complaint of the claimants was the delay between the making of their applications and the dates of the effective hearings of their applications before the tribunal. He said at paragraph 31:
“As is apparent, it is not possible to have an effective tribunal hearing immediately after a patient makes an application for the review of his detention. A number of steps, referred to above, have to be taken before an effective hearing can take place before a tribunal that “is in a position, adequately and fairly, to adjudicate on the issues before it”: c.f. R (C) v the London South and Western Region Mental Health Review Tribunal at paragraph [51]. One question to be considered is: assuming reasonable availability of resources and a reasonably efficient administrative system, what period of time between application or reference to the tribunal and effective hearing is ordinarily consistent with a speedy decision? What is a speedy decision in any case will depend on a number of factors, including the nature and importance of the subject matter of the case, the complexity of the issues, the preparation required before the hearing, and the evidence to be considered. Factors extraneous to the particular case may also be relevant, such as a sudden increase in similar applications, or the intervention of a holiday period. However, in my judgment the fact that a patient’s case is perceived to be unmeritorious does not deprive him of his right to a speedy hearing; and similarly, if there is unjustified delay before the hearing, the fact that his case is belatedly held to be unmeritorious does not excuse the infringement of that right.”
He cited passages from the Master of the Rolls judgment in C and continued at paragraph 38:
“As can be seen, in none of the cases before me was an effective hearing held within an 8-week period, let alone a 5-week period. Delay was caused by cancelled hearings. In any sensibly managed judicial system there are bound to be adjournments and cancelled hearings for a number of reasons: the illness of a judge or the unavailability of a necessary witness, the over- running of a earlier hearing, or the need to accommodate an urgent case. The postponement of a hearing for such reasons does not necessarily involve any infringement of the rights of a citizen party under Article 5 or Article 6.”
[45]Stanley Burnton J. went on that isolated instances in which cases are heard after the date when they could in practice have been heard do not necessarily involve an infringement of Convention rights, but that the claimants’ case was that their cases were not isolated but typical. The problem was that the mental health review tribunal system was not up to the job. Their delay was not exceptional but due to systemic inadequacies in particular under-resourcing and to a lesser extent inefficiencies in administration. He concluded that the correct approach was first to consider whether the delays in question were, on the face of it, inconsistent with the requirement of a speedy hearing and that if they were the onus was on the state to excuse the delay. He went on at paragraph 47:
“If they are, the onus is on the state to excuse the delay. It may do so by establishing, for example, that the delay has been caused by a sudden and unpredictable increase in the workload of the tribunal and that it has taken effective and sufficient measures to remedy the problem. But if the state fails to satisfy that onus, the Claimant will have established a breach of his right under Article 5(4).”
He said at paragraph 112:
“Under Article 5(4), it is for the state to ensure speedy hearings of detained patients’ applications. The state must establish such tribunals or courts and provide such resources, as will provide speedy hearings. It is therefore irrelevant to the question whether there has been an infringement of Article 5(4) which government department or other public authority was at fault.”
[46]There is no evidence that the delay in the present case arises from lack of resources. It arose in my judgment because the case was repeatedly not ready to be heard, first because the necessary medical evidence was not available and second because a convenient date could not be found.[47]What is the correct approach to cumulative delay in cases of this kind? In my judgment the starting point is that Rule 29 (cc) requires a date to be fixed for the hearing not later than eight weeks from the date of receipt of the reference. That gives at the very least some indication of the timescale envisaged by parliament. Thereafter Rules 13 and 16, which are concerned with directions and adjournments, are both indicators of an early determination of the reference. Rule 13 refers to ensuring the ‘speedy and just determination of the application’ and Rule 16 refers to the ‘prompt consideration of the application at an adjourned hearing.’[48]I do not accept Mr Bowen’s simplistic submission that all the delay flows from the March adjournment. Nor, as I have said, do I accept his submission that the Secretary of State was at fault in causing that adjournment. On the other hand, the adjournment certainly was not caused by B or his advisers and I certainly do not accept the contrary argument that the adjournment of the 4 May 2001 hearing was at the instigation of B’s advisers and that all the subsequent delay flowed from it, causing no breach of Article 5(4). At one time it was suggested that each step from March 2001 onwards should be looked at in isolation to see if it was justified and that leaving aside granting an adjournment without hearing B’s representatives, there was no fault thereafter and all the subsequent delay was justifiable in the light of events at the time.[49]Whilst in my judgment some of the delay may have been caused by the failure of those representing B to ensure their evidence was available more promptly and to have pressed for an earlier hearing date (albeit the detailed facts are somewhat obscure), the underlying problem is the lack of case management on the tribunal’s part. At each stage the tribunal should have had in mind the delay that had accrued until then and given directions against that background. The longer the delay that has occurred the more aggressive the directions will need to be to ensure early disposal of the case. There comes a time when the convenience of expert witnesses must cede to the need for the tribunal to conclude a substantive hearing.[50]In Musial v Poland (2001) 31 EHRR 29 the European Court pointed out (C.44) that it falls to the court to ensure that expert opinions are submitted within a reasonable time. The court said in its judgment at paragraph 46:
“Similarly, the fact that the Katowice Regional Court appointed experts at the applicant’s specific request did not in itself discharge that court from its obligation to rule speedily on his request for release. The court sees no cause in the circumstances of the present case for departing from the usual principle that the primary responsibility for delays resulting from the provision of expert opinions rests ultimately with the state. ”
[51]The unacceptability of the total delay in the present case is well illustrated by the fact that a recalled restricted patient could ordinarily have expected two tribunal hearings by 18 October 2001, the first within the maximum of eight weeks after recall; the second six months thereafter.[52]In Kay v United Kingdom the Commission concluded there had been a breach of Article 5(4) saying at paragraph 65:
“In the Commission’s view, the system itself is inherently too slow. Accordingly, it does not deem relevant the applicants subsequent requests for adjournments and, later, his apparent disinterest. It considers that the absence of any psychiatric assessment prior to the applicant’s recall demonstrates the deficiency in the system, which contributed to the delays before the tribunal. In all the circumstances, the Commission is of the opinion that the proceedings before the mental health review tribunal were not conducted ‘speedily’ within the meaning of Article 5(4) of the convention.”

Conclusion

[53]The delay in this case of eight and a half months is so long as to call for an explanation by the state (represented in this instance by the tribunal). No adequate explanation has been forthcoming, albeit it is plain that with effective case management the substantive hearing would have taken place a great deal earlier without in any way prejudicing B’s right to a fair hearing. I have come to the conclusion that the lawfulness of B’s detention was not decided speedily in this case and that therefore there is a breach of Article 5(4) of the ECHR.[54]The Secretary of State did not act unlawfully or improperly in seeking an adjournment of the tribunal hearing fixed for 28 March 2001. Indeed, he acted entirely appropriately in doing so.[55]The regional chairman acted in breach of natural justice and therefore unlawfully in granting an adjournment without first giving B’s representatives an opportunity to be heard. Furthermore, he compounded his error by failing to give any directions as to the future conduct of the proceedings.[56]I am satisfied that had both sides been heard the hearing fixed for 28 March 2001 would nevertheless have been adjourned, but it should have been adjourned on terms that ensured a hearing date in the foreseeable future.[57]The failure to give adequate case management directions was repeated on 4 May 2001 and thereafter until the reference meandered to a hearing in October 2001.[58]No relief is due against the Secretary of State who in my judgment is not shown to be in error in any way. As Mr Chamberlain pointed out, were he not correct in asking for an adjournment, one should not have been granted. He is, in any event, a party to the proceedings rather than responsible for the management of the tribunal.[59]I take into account Mr Mould’s submission that no relief should be granted where a breach of natural justice leads nowhere. However, I am satisfied that but for the tribunal’s failure to manage the case properly there would have been an earlier hearing and no breach of Article 5(4). I bear in mind that the lawfulness of B’s detention was in the end confirmed. The breach of Article 5(4) does nevertheless seem to me to give rise to an issue whether B is a victim and entitled to compensation under Article 5(5). I direct that that issue be determined later this month along with the other claims arising out of Stanley Burnton J’s decision in KB and others .[60]Issues about compatibility do not arise, because what went wrong in this case was not in any way due to the legislation. It is unnecessary therefore for me to deal with the submissions that were made on that issue. Consequential orders[61]Subject to any further argument, I propose to make a declaration that the tribunal’s failure to hear the reference speedily was in breach of Article 5(4) of the ECHR and to direct that the issue as to damages be stood over until the subsequent hearing. I shall hear argument as to the precise terms of the order and as to any consequential directions in preparation for the forthcoming hearing. - - - - - - - - - - - - - MR JUSTICE SCOTT BAKER : For the reasons given in the judgment that has been handed down, this application for judicial review succeeds. MISS TRIPLEY : My Lord, I would ask for my costs in this matter. My Lord, there is one matter Mr Bowen has asked me to raise with you before I move on to that. MR JUSTICE SCOTT BAKER : Yes. MISS TRIPLEY : It is a matter that arises in respect of your judgment. My Lord, Mr Bowen has requested that I raise with your Lordship the direction you set out at paragraph 59 of the judgment, dealing with the issue of compensation and the hearing of KB and others. MR JUSTICE SCOTT BAKER : Yes. MISS TRIPLEY : I understand that that is now due to be heard in two days' time. MR JUSTICE SCOTT BAKER : Well, in fact, I was asked if that case could be adjourned by consent. So what I said was that it should remain in, but only for directions, on Friday. There has been a problem about getting medical evidence in order, and what I was anxious to do was not to adjourn it generally, but to adjourn it so everybody knew what the timetable was. MISS TRIPLEY : That may well assist because my application was going to ask for this matter to be adjourned in relation to paragraph 59 generally, but if those matters are not going to be dealt with. MR JUSTICE SCOTT BAKER : No, if everybody can put their heads together and try and reach some agreed directions that would even be better, then nobody would have to come back on Friday. MISS TRIPLEY : Yes, I am grateful for that. I will not pursue that matter. MR JUSTICE SCOTT BAKER : I do not know if Mr Chamberlain knows anything about that side of it? MR CHAMBERLAIN : My Lord, I do not, what I was going to invite your Lordship to do was to release me from that part of the proceedings, because your Lordship has indicated in your judgment that no relief is due against the Secretary of State. MR JUSTICE SCOTT BAKER : No. MR CHAMBERLAIN : So it may well be if the government's interests are adequately represented by others-- MR JUSTICE SCOTT BAKER : I am sure they are. MR CHAMBERLAIN : --in the KB case. So, my Lord, in fact, I do not have any submissions to make on how your Lordship should deal with that part of the proceedings. MR JUSTICE SCOTT BAKER : Right. MR MOULD : My Lord, first of all, I am sorry about my being late. I am afraid I was foxed by the time on the draft of your Lordship's judgment, and I had not noticed it had been brought forward by half an hour, but there it is. MR JUSTICE SCOTT BAKER : I think it was at somebody's request probably. MR MOULD : I hope it was not mine. MR JUSTICE SCOTT BAKER : Anyway, it is nice to see you here now. MR MOULD : My Lord, I am not sure quite how far you reached, but has your Lordship dealt with the question of costs? MR JUSTICE SCOTT BAKER : No, I have not. In fact, we have done nothing so far except announce the decision, and I was just saying that Friday was now a direction hearings. MR MOULD : Yes, of course. My Lord, I would have no difficulty with that, and make the submission that that would be a sensible way for your Lordship to proceed in this case. In those circumstances, it make sense for this case to be "worked in" in that respect. I have no doubt that, certainly as things stand at the moment, the Tribunal will wish to consider their position as to whether they would wish to be actively involved in relation to that aspect of the case, having regard to the range of submissions that will no doubt already be envisaged by the other defendants that are intending to take an active part in that litigation. MR JUSTICE SCOTT BAKER : Yes, I think there are a number of obstacles in the way of this claimant obtaining any compensation in the light of, what I do know, of the European authorities on this. MR MOULD : Yes, and I think I may have anticipated, indeed if we reached that far, I think I made this clear in my skeleton argument, that we would certainly be submitting that, in light of some of the European cases, the grant of a declaration here was sufficient to the just satisfaction, in effect, to Mr B. MR JUSTICE SCOTT BAKER : Yes. MR MOULD : But, my Lord, there it is, that is a matter which obviously has to be considered in detail by your Lordship, or whoever ultimately decides this case, Stanley Burnton J is also a possible tribunal for that. Suffice it to say, as things stand today, if your Lordship is minded to, as it were, conjoin this case with those cases, on the basis that there will be directions given for the further conduct of the cases, as a whole, I would not seek to persuade your Lordship otherwise. MR JUSTICE SCOTT BAKER : That means this case goes in for directions on Friday with the others? MR MOULD : Yes, thank you very much. MR JUSTICE SCOTT BAKER : Yes, that seems sensible. I shall do that. Costs. Yes, Miss Tripley, you were asking for costs. MISS TRIPLEY : Yes, I was asking for my costs. MR MOULD : My Lord, I, on behalf of the Tribunal, plainly cannot resist an order for costs. MR JUSTICE SCOTT BAKER : Yes. MR MOULD : As I understand it, Mr B is legally aided and enjoys the benefit of Public Legal Services Funding and I would invite your Lordship to make the appropriate order in that respect. MR JUSTICE SCOTT BAKER : So you have an order for costs against the first defendant. MR CHAMBERLAIN : My Lord, it may be something of a formality, but I also have an application for costs against the claimant. Your Lordship will recall that this was a case which was brought, in the first instance, against the Tribunal, and the Secretary of State was only added in as a defendant at a later stage, so the claimant then obtained permission to add in the Secretary of State to make two claims against him. Firstly, that the Secretary of State had erred by getting his evidence in late, and secondly that the claim in relation to incompatibility - the claimant, so far as the Secretary of State is concerned, so far as that part of the claim is concerned - has failed on both of those counts and, in principle, albeit your Lordship may consider the matter is somewhat academic given the claimant's position, in principle the Secretary of State is entitled to an order for costs against the claimant. I would ask my Lord to order detailed assessment, and the amount of any such order to be assessed by the costs judge in the normal way? MR JUSTICE SCOTT BAKER : But what is the point of assessing your costs against a legally aided claimant, because they would normally not be enforced without further order? MR CHAMBERLAIN : Well, my Lord, it may well be that that is the appropriate order to make: detailed assessment be suspended, as it were, until further order. MR JUSTICE SCOTT BAKER : What would you like to say about this, Miss Tripley? MISS TRIPLEY : Well, my Lord, I would say this is highly academic. In my view, even if you make the order, as my learned friend has just outlined, the likelihood of it ever being enforced against this particular claimant, I would have thought, is extremely unlikely given his circumstances. I would submit the claimant's conduct has been reasonable throughout. It was a matter of public interest with the claimants pursuing the issues against the Secretary of State, and the Secretary of State for the Home Secretary, as I understand it, was only brought in very late to these proceedings, 4th February 2002, when he was joined in the proceedings, and permission to apply for judicial review against the Secretary of State was not granted until 15th April 2002. I would ask your Lordship to take those matters into account and to say that it is very academic in this instance. MR JUSTICE SCOTT BAKER : It really is so academic that no order as to costs probably is more sensible, is it not? MR CHAMBERLAIN : My Lord, I am not going to spend too much time persuading your Lordship. I have made the application. MR JUSTICE SCOTT BAKER : No, I think I am going to say no order as to costs as far as the Secretary of State is concerned, otherwise we get into the complicated situation of costs running in both directions. I think it is simpler to do it that way. Thank you. MISS TRIPLEY : My Lord, there is only one final application from me, and that is detailed assessment of the claimant's publicly funded costs? MR JUSTICE SCOTT BAKER : I imagine your certificate is on the file, is it? THE ASSOCIATE : Yes, it is. MR JUSTICE SCOTT BAKER : Yes, you can have it. MISS TRIPLEY : I am grateful, my Lord. MR JUSTICE SCOTT BAKER : No application for leave to appeal? MR MOULD : No, my Lord. MR JUSTICE SCOTT BAKER : Thank you all very much for your helpful arguments and, thank you for Mr Bowen's mental health book.

Cited in 4 later judgments