OS, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1903 (Admin)

[2006] EWHC 1903 (Admin)Case No CO/2043/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24 July 2006
Before
THE HONOURABLE MR JUSTICE SILBER
THE QUEEN(On the application of OS)
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Christopher Buttler (instructed by Kaim Todner) for ClaimantAndrew Henshaw (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 19 and 20 June 2006Written submissions supplied on 21 June 2005.
APPROVED JUDGMENT

I. Introduction

[1]OS (“the claimant”) seeks to quash decisions of the Secretary of State for the Home Department (“the Secretary of State”) made on 23 December 2005 (“the December decision”) and 20 March 2006 (“the March decision”) refusing consent for the claimant to have community leave of absence under section 17 of the Mental Health Act 1983 (“the Act”). The consequence of these decisions is to prevent effect being given to a decision of the Mental Health Review Tribunal (“the MHRT”) made on 10 May 2005 whereby it directed the claimant’s conditional discharge from Chase Farm Hospital. Sullivan J gave the claimant permission to apply for judicial review. The submissions have focussed on the challenge to the March decision because it would not assist the claimant to obtain an order quashing the December decision if the March decision still remained in force. The March decision will also very shortly be overtaken by a further decision of the Secretary of State, who has agreed to reconsider his decision after the determination of the appeal, which was heard on 11 July 2006 and which was against the deportation order to which I will refer in paragraph 24 below.

II. Background

[2]The claimant is a Turkish national, who was born 1 January 1979. He arrived in the United Kingdom on 10 October 1998, claiming asylum at the port. On 28 March 1999, the claimant was arrested for murder of Bilal Gilfil. On 15 February 2000, he was transferred to Chase Farm Psychiatric Hospital (“Chase Farm”). On 15 June 2001, the defendant refused the claimant’s asylum claim. On 30 September 2003, the claimant was convicted of the manslaughter of Bilal Gilfil on the grounds of diminished responsibility. On 23 April 2004, the claimant was sentenced to detention at Chase Farm without limit of time and the Court imposed a restriction order under section 41 of the Act, on the grounds “...that it is necessary for the protection of the public from serious harm”.[3]Section 41(3) of the Act states that the effect of a restriction order means that:
“(a) …the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under …Part II or absolutely discharged under section 42 [Powers of the Secretary of State in respect of patients subject to restriction orders], 73 [Power of the MHRT to discharge restricted patients] …below; (b) none of the provisions of Part II of this Act relating to after-care under supervision shall apply; … (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely – (i) power to grant leave of absence to the patient under section 17 above; … and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer; (d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 may be exercised at any time…”
[4]On 30 December 2004, the claimant made an application to the Mental Health Review Tribunal (“MHRT”) for his discharge pursuant to section 73 of the Act. The MHRT’s powers to discharge restricted patients, whether absolutely or subject to conditions are conferred by section 73 of the Act, which requires the MHRT to conditionally discharge a patient where it is not satisfied that: i. he is suffering a mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or ii. it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; and iii. it is not appropriate for the patient to remain liable to be recalled to the hospital for further treatment.[5]The MHRT may either order a bare conditional discharge where the only condition is that the patient is liable to be recalled to hospital but the MHRT will usually seek to impose additional conditions as it did in this case to ensure that the community mental health team would be able to determine if and when the patient should be recalled. Section 73(7) of the Act provides that:
“A [MHRT] may defer a direction for the conditional discharge of a patient until such arrangements as appear to the [MHRT] to be necessary for the purpose have been made to their satisfaction…”
[6]If a patient is conditionally discharged by the MHRT, the Secretary of State may subsequently impose conditions: section 73(4) (b). He may from time to time vary any condition imposed by the MHRT: section 73(5). The Secretary of State may at any time recall a patient who has been conditionally discharged by the MHRT: section 73(4) (a).[7]The Claimant applied to the MHRT on 30 December 2004 for his discharge pursuant to section 73 of the Act and this has led to a series of very clearly reasoned decisions and findings of the MHRT which are relevant to this application and which I will now summarize.

(i) The 10 May 2005 Decision

[8]On 10 May 2005, the MHRT explained that it was:(a) satisfied that claimant was suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment;(b) not satisfied that it is necessary for the health or safety of the claimant or for the protection of other persons that he should receive such treatment [i.e. treatment while detained in hospital]; and(c) satisfied that it is appropriate for the claimant to remain liable to be recalled to hospital for further treatment.[9]The MHRT directed the claimant’s deferred conditional discharge on the conditions that the claimant:(a) reside at such 24 hour supported accommodation as may be approved by the claimant’s responsible medical officer (“RMO”); and(b) shall accept all psychiatric and social supervision, attend follow-up appointments and comply with all such treatment and supervision as may be directed.[10]The MHRT deferred release of the claimant until such time as it was satisfied that the necessary arrangements had been made to meet these conditions and second the claimant had undergone a period of “testing” in the form of unescorted community leave.[11]The MHRT stated that:
“[6.2] His symptoms at the time of the restriction order included auditory and visual hallucinations and persecutory delusions. It is not disputed that when he is psychotic [the claimant] presents a risk to himself and others: the clinical history discloses suicidal ideation and self harm attempts as well as command hallucinations instructing him to harm others.”
[12]However, the MHRT accepted that the claimant had broadly speaking remained well since about June 2000, that medication had ceased in May 2001, and that the claimant was then free of all psychotic symptoms, albeit there was some evidence of three mild and short-lived psychotic episodes in 2002 and 2003.[13]The professional team treating the claimant at Chase Farm opposed his discharge on the grounds that:
“[6.5] …he lacks insight into the index offence, has not yet been tested on Community leave and may disengage from services if released into the Community. His mental state might then deteriorate and he could constitute a risk to himself and others. They require [the claimant] to be tested in this way so as to be able to identify further areas of psychological work that may benecessary. They say that he has not engaged well with such work over the years…”
[14]The professional team also referred to the seriousness of the offence of manslaughter for which the claimant had been sentenced and the lack of remorse shown by the claimant. The practice at Chase Farm was not prepared to recommend restricted patients for discharge until they had been tested out on unescorted community leave, but the team’s requests for such leave for the claimant had until that time been refused. Dr. de Souza, who was the Specialist Registrar to Dr. Mikhail the claimant’s responsible medical officer(“RMO”), concluded his report dated 13 April 2005 by stating that:- “If discharged at the present time, I would be concerned that [the claimant ] would disengage from psychiatric aftercare, putting him at high risk of further breakdown and increased risk of violent offending. It is felt that a significant period of safe testing in the community with escorted and unescorted community leave would be required before we are able to recommend discharge. Psychological work at this time would address areas of risk that may arise during this period as well as revisiting areas of insight into illness and offending behaviour, which will be important in his reintegration into the community.”[15]The MHRT found that there had been no major change in the claimant’s mental state since April 2002 and that there was “no evidence before us that the claimant cannot complete his rehabilitation in a 24 hour supported hostel”. It recognized that further “testing” in the community was “necessary”, but it considered that the testing could be carried out “while accommodation is being found and the claimant’s suitability for it is being assessed”. “[6.9] … while we are satisfied that the nature (although not the degree of [the Claimant]’s underlying mental illness is such that it is not appropriate for him to be liable to be detained in hospital for treatment for his own health and safety and the protection of others, we are not persuaded that it is necessary for him to be treated in hospital, providing and so long as his illness can be successfully managed in the community in compliance with the above conditions”. . 16B. Thus the position was that the MHRT decided that the claimant should be released subject to conditions but that his discharge should be deferred until the MHRT was satisfied that the necessary arrangements had been made to meet those conditions, which are that the claimant should be liable to recall, that he should reside at such 24 hour supported accommodation as may be recommended by the RMO and that he may be supported in the community. The purpose of these conditions was to enable hostel staff and community supervisors to monitor the claimant’s mental health. (ii)The 23 August 2005 MHRT Decision.[17]On 23 August 2005, the MHRT noted the progress made by the claimant with escorted community leave, which is leave in the community with the patient accompanied at all times by, usually, a member of the hospital staff. Conditional discharge subject to the conditions set out in paragraph 9 above was ordered. The claimant’s RMO indicated that unescorted community leave would be commenced as soon as Home Office permission had been received.[18]It is appropriate to explain at this stage that each detained patient has an RMO who has certain statutory functions. In respect of non-restricted patients, the RMO exercises these functions at his own discretion. One of these functions is the power under s. 17 of the Act to grant leave of absence from hospital but for patients such as the claimant, who were subject to a restriction order under section 41, such power may only be exercised with the consent of the Secretary of State: s. 41(3)(c)(i) of the Act. The claimant in these proceeding challenges the way in which the Secretary of State exercised these powers by refusing in both decisions under challenge to give his consent for the claimant to have leave of absence. (iii)The 25 November 2005 MHRT Decision[19]When the MHRT reconvened, it made the same order as set out in paragraph 9 above and it expressed its concern that “the rehabilitation of this patient is being hindered by the absence of community leave” and it directed the Secretary of State to provide written reasons for his refusal of consent for unescorted community leave. It concluded its written reasons by stating that: “7.2 The patient told us that he has no intention of absconding if granted unescorted community leave and pointed out that he could have absconded while on unescorted ground leave if so minded. We recommend that the RMO consider the implementation of shadow leave. “[Shadow leave” (or “shadowed leave”) involves the patient being followed without his knowledge]. IV. The Secretary of State’s December Decision.[20]Before explaining the Secretary of State’s decision, it is appropriate to mention his role and duties. Counsel agree that the appropriate principles were explained in R v Secretary of State ex parte v Harry [1998] 1 WLR 1737 by Lightman J. in a case in which the Secretary of State had refused to consent to a transfer of a patient to a less secure unit. He said at page 1746: “In short, as it seems to me, the scheme of the Act places on the [Secretary of State] the responsibility in the case of Restricted Patients to balance the patient’s claim to liberty against the interests of everyone else to be safeguarded against the risks to which such liberty may give rise. For his performance of these duties the [Secretary of State] is politically accountable to Parliament. His obligation is fully to satisfy himself as to the propriety of any decision before he makes it because of the serious impact of such decision, and if the finding or recommendation of the MHRT leaves him in doubt, he is not only entitled but bound to look further afield for guidance: the finding and recommendation of the MHRT may assist him to fulfil this obligation, but cannot dilute it or impede its fulfilment or obviate the need for the exercise by him of an informed judgment whether consent should be forthcoming”.[21]The parties also agree that the correct approach is that adopted by Crane J in R (RA) v Secretary of State forthe Home Department [2002] EWHC 1618 (Admin), who declined to hold that Secretary of State must exercise his section 17 power in accordance with the recommendations of the MHRT (see paragraph 57). Crane J explained that:- “59…In my judgment, the Secretary of State has a duty to respond with reasonable promptness to recommendations by a Tribunal and to requests by a RMO; not to obstruct or cause unreasonable delay to the implementation of a Tribunal’s decision; and to follow recommendations made by a Tribunal in the absence of sound reasons or new circumstances.”[22]It is also common ground that the Secretary of State is entitled in making his assessment of risk to consider the risk that the patient will not return after being given leave. This is important because the Secretary of State will be able to take into account factors, which the MHRT would not or could not consider, such as the immigration status of the patient and whether this or any other factor might lead him or her not to return to their hospital after their leave has expired.[23]The Secretary of State provided his written reasons in accordance with the MHRT’s direction in the December decision in a letter from Mr. Westlake of the Mental Health Unit dated 23 December 2006 in which he stated that:- “When considering an application for unescorted leave the Home Secretary may consider whether the risk of abscond may be affected by the individual’s immigration status and/or any forthcoming immigration hearing. [The claimant] claimed asylum in the United Kingdom in 1998. This application was refused on 15 June 2001. [The claimant] appealed against this decision but his appeal was dismissed and all of his rights of appeal were exhausted on 4 March 2002. He has not regularised his immigration position since that date and so is now liable to deportation. In considering the application for unescorted leave the Home Secretary considered that the risk of absconding in [the claimant]’s case, because of his immigration status in this country, was such that it would be inappropriate to grant such leave.”

V. The Deportation Order

[24]On 10 January 2006, the Immigration and Nationality Directorate of the Home Office issued a decision to the effect that the claimant’s deportation to Turkey would be conducive to the public good, having regard inter alia to the circumstances in which the claimant arrived in the UK and claimed asylum and the seriousness of the offence which he had committed. It was also found that if the claimant were to be deported to Turkey he would be able to receive the same level of medical treatment and attention as that which he was receiving in the United Kingdom. The claimant’s appeal from the deportation order was heard by the Immigration and Asylum Tribunal (“IAT”) on 11 July 2006 and it is likely that judgment will then be reserved. By rule 22 of the Asylum and Immigration and Tribunal (Procedure) Rules 2005, the IAT:
“Must send its determination (a) if the appeal is considered at a hearing, no later than 10 days after the hearing finishes; or (b) if the appeal is determined without a hearing, no later than 10 days after it is determined”
. VI. The 24 February 2006 MHRT decision.[25]On 24 February 2006, the MHRT reconvened and it “noted” the Secretary of State’s December decision but it made the same order as set out in paragraph 9 above. It stated that the claimant’s mental state remained entirely settled and appropriate, but that conditional discharge could not be pursued in accordance with the MHRT’s earlier order because of the Home Secretary’s refusal to allow the claimant unescorted community leaveor shadow leave.[26]At that hearing, the claimant’s representative asked the MHRT to delete the conditions subject to which he was conditionally discharged so that he could live with his sister in Doncaster or, alternatively, to direct that his discharge be transferred to a different clinical team “which might not insist on trial community leave as a condition for acceptance at a hostel”. He stated that the claimant had “no intention of absconding” (paragraph 7.4 of the Reasons)[27]However, the MHRT did not accede to this submission because (with my emphasis added), it stated that:- “[7.5] While sympathising with [the claimant]’s predicament the MHRT is not prepared to accede to either of [the patient’s solicitor’s] suggestions. Dr Mikhail told us that although [the claimant] has been well and unmedicated for some years he has been in a supervised, highly supported and stress-free environment and it is feared that the effect of discharging him to the community without supervision and protection might be to destabilise his mental state and place the public at risk. Dr Mikhail regards the final stage of his rehabilitation, namely testing on unescorted leave, as important. [7.6] The MHRT accepts Dr Mikhail’s view because it is consistent with that of Dr Bates whose report of 18 August 2005 we also accept and because Dr Mikhail has considerable experience of [the claimant]’s treatment. We remind ourselves of the seriousness of the index offence. [7.7] We think it unlikely that any other prospective community RMO would take a different view of the importance of unescorted community leave. [7.8] In these circumstances the MHRT considers that it has no alternative but to defer [the claimant]’s conditional discharge yet further until his immigration status is settled.” VII.

(i) Introduction

[28]The claimant challenged the December decision by way of judicial review. In response, the Secretary of State served a witness statement of Mr. Mark Darby of the Mental Health Unit of the Home Office, whose responsibilities included the taking of decisions on behalf of the Secretary of State in relation to restricted patients. He had not previously been involved in the claimant’s case but he concluded for reasons set out in a witness statement of 20 March 2006 that he was “not satisfied that unescorted leave can be safely granted in [the claimant’s] case”. The claimant seeks to challenge this decision, which is the March decision. The submissions of Mr. Christopher Buttler for the claimant and Mr. Andrew Henshaw for the Secretary of State have focused solely on that decision and I must now explain the reasoning in it.[29]Mr. Darby explained that he had “considered, de novo, whether unescorted community leave can safely be granted in [the claimant]’s case”. In doing so, he familiarized himself with the file, considered the grounds of challenge set out in claimant’s statement of facts and grounds, before reconsidering all the evidence disclosed to the Court and all the circumstances of the case that were evident from claimant’s case file. (ii). The risk of absconding[30]Mr. Darby’s first conclusion was that there was a “significant risk that the claimant would abscond if he were to be given unescorted community leave”. He explained that the risk of absconding was one of a number of relevant factors and it may depending on the circumstances be the crucial or a determinativefactor.[31]He considered that if a person was liable to removal from the UK under immigration legislation, it was appropriate to consider the risk of absconding that may flow from that fact. Mr. Darby’s view was that a patient’s immigration status was not the sole determining factor to be taken into account and no application would be refused solely on the basis of that status.[32]Mr. Darby noted that the claimant stood to be returned to Turkey on two bases, namely first because of his status as a failed asylum-seeker and second by reason of the deportation order issued on 10 January 2006. He took into consideration the ground on which the claimant had unsuccessfully claimed asylum, which was that he had a well-founded fear of persecution in Turkey and that when this factor is considered together with the liability of the claimant to be removed from the United Kingdom, there was in his opinion “a potential abscond risk”.[33]Mr. Darby considered this factor with other information as he also understood that the claimant was concerned about his immigration status and that he had sought assurances that he would not be returned to Turkey. It was understood by Mr Darby that the claimant was appealing the deportation order on the basis of destination.[34]In Mr. Darby’s opinion, the claimant’s manslaughter conviction in 2003 and the hospital order imposed on him with restrictions in 2004 indicated that the potential risk posed by the claimant was at “the more serious end of the scale”. He also noted that there was also some clinical evidence to suggest that the claimant would present a risk of violent behaviour in the absence of any psychosis.[35]Mr Darby referred to the evidence that the claimant had a history of absconding and he pointed to three incidents referenced in the Nursing Assessment Report in which the claimant had broken the permitted ground leave boundaries he had been given, noting however that it was not clear whether the third was the same as the first or a separate incident. (I will return to consider this evidence in paragraph 43 to 50 below when I comment on the claimant’s first ground of challenge).[36]The claimant also appeared to Mr. Darby to be concerned about reprisals from the family of the man whom he had killed. Mr Darby refers to several incidents in which Dr de Souza’s report recorded strange behaviour from the claimant explained by the claimant on this basis. Mr Darby stated that:
“[it] would be unwise to dismiss out of hand the concerns raised by the claimant about the possibility of reprisals. The victim was Turkish and the claimant would undoubtedly have to move to a Turkish community or at least frequent a Turkish community when on unescorted community leave. I believe that any fears that the Claimant might have of reprisals would increase the risk of absconding”
[37]Mr Darby noted the argument put forward on the claimant’s behalf that he had not sought to abscond from the hospital while on unescorted ground leave and that this should be taken into account in considering his risk of absconding on unescorted community leave. However, Mr Darby considered that ground leave and unescorted Community leave were “very different” because: “Ground leave occurs for limited periods, generally of one to two hours at a time, and the hospital staff tend to be very aware that patients are out and where they are. Indeed, the leave request dated 9 August 2005 states that [the claimant] had ground leave for one hour periods. Unescorted community leave can last for much longer, for example, eight to ten hours at a time, and staff are not relatively nearby, as they are in respect of ground leave. Unescorted community leave therefore can give a whole new opportunity for a patient to abscond if he wished to do so”. (iii). The risk to the public[38]Mr. Darby noted that the risk of absconding alone does not answer the question as to whether leave should be given for unescorted community leave. It was also necessary to consider what the risks would be if the claimant were to abscond.[39]In this connection, Mr Darby inferred from the claimant’s manslaughter conviction and hospital order with restrictions that the potential risk posed by the claimant was of inter-personal violence and that any such violence was likely to be at the more serious end of the scale.[40]It was relevant to Mr. Darby that the claimant did not acknowledge or appreciate the seriousness of his index offence in which he had inflicted fatal head injuries on another Turkish man with a blunt object. Further, the claimant had given inconsistent accounts of his understanding of his offending behaviour and illness, and the claimant was described in the medical reports as having little victim empathy. In addition, there was some clinical evidence to suggest that the claimant would present a risk of violent behaviour in the absence of any psychosis.[41]Mr Darby acknowledged that the claimant was then mentally stable and on no medication with his paranoid schizophrenia then being in remission.[42]However, he considered that paranoid schizophrenia was a relapsing and remitting condition. If the claimant were to abscond, there was a significant risk that his mental state would deteriorate and the risk that he posed of serious inter-personal violence would increase accordingly. (iv). Conclusions[43]In the light of the nature of the risk posed by the claimants and the evidence indicating that there was a risk of him absconding, Mr. Darby was “not satisfied that unescorted community leave can be safely be granted”. VIII. The Grounds of Challenge.[44]Mr. Buttler contends that the Secretary of State erred because in making the decision set out in Mr. Darby’s witness statement, the Secretary of State-(1) assessed the Claimant’s probability of absconding by reference to a mistaken understanding of the facts relied upon by him;(2) assessed the Claimant’s probability of absconding by reference to facts and matters that are logically unconnected to the probability of absconding;(3) failed to have any regard to the MHRT review decision;(4) failed to undertake any balancing of the risk of public harm against a patient’s right to liberty where a MHRT has ordered discharge and in particular the Secretary of State solely considered the risk of public harm;(5) failed to consider whether the legitimate objective of ensuring no undue risk of public harm could be met by the imposition of conditions;(6) assessed the Claimant’s probability of absconding by a selective and unbalanced reliance upon the facts and matters before him;(7) adopted a contradictory stance in relation to his mental health and his immigration functions;(8) failed to explain his dissatisfaction with the MHRT’s decision; and(9) failed to afford the Claimant the opportunity to make representations. IX. Ground 1: Errors of Fact.[45]Mr Buttler points out that the Secretary of State according to paragraph 3 (e) of Mr Darby’s witness statement relies on three incidents to show a history of absconding. His submission is that there are errors in respect of each and it is appropriate now to set out the passage in the letter of which complaint is made and it states that:
“There is evidence that [the claimant] has a history of absconding. There is now produced and shown to me …a copy of a care nursing assessment report dated 9 February 2005. At the second page it states “On the 5 December 2004 while on unescorted ground leave, left the hospital grounds without permission, which subsequently led to his leave being revoked. Conditions of leave was explained to [the claimant] by his named nurse in relation to his section. Leave was reinstated in the latter”
. At the third page it states “Risk of absconsion: - [the claimant] absconded from Hollin ward on the 5 May 2002 by breaking a window. He was found by hospital staff on the grounds and was brought back soon after this. He appeared not to know where he was going”. There is also an incident on 15 December 2005 referred to in the RMO’s report dated 13 April 2005, which states ‘Again he was noted as generally settled on the ward with no evidence of psychosis. He was spending a lot of time I [sic] the main areas of ward and was seen by staff outside the boundaries of ground leave but still in the local area. He had his leave briefly suspended as a result. When seen by the SHO he appeared remorseful regarding breaking the boundaries of leave’. It is not clear whether this is the same incident referred to above on 5 December or whether it is a separate incident”[46]The first incident to which reference is made is 5 May 2002 but this is the wrong date because the incident actually occurred on 5 May 2000. It seems clear that Mr Darby took the date which he used from the nursing assessment which he exhibited to his witness statement. This assessment interestingly refers to this episode under the heading relating to “risk of absconsion”. In my opinion, this is a correct classification of this episode as it involves breaking a physical barrier to escape and the nursing assessment report notes, as does Mr Darby that the claimant said at the time that he did not know where he was going.[47]The second complaint of Mr Buttler is that the incident dated 15 December 2004 should have been described not as one of “absconding” but as one of straying beyond the limits of the grounds. This incident is also mentioned in Dr de Sousa’s report and in the nursing assessment report. In my view, Mr Darby was entitled to adopt and repeat the description of this incident as being an occasion on which the claimant failed to observe the limits imposed on him. That is relevant to the issue of the risk of the claimant not complying with any conditions imposed, which is a significant feature in assessing the risk of absconding.[48]The third criticism is that there is a further episode referred to, which is dated 15 December 2005 whereas it would appear to be a reference to the incident, which had occurred on 15 December 2004. This criticism is justified but Mr Darby did make it clear in his decision that he doubted as to whether this was a separate incident or the same one as the one to which he had already referred.[49]In those circumstances, he did not proceed on the assumption that a further incident was involved. A further criticism that was made was that Mr Darby failed to take account of the fact that the claimant had successfully used leave on a number of occasions after 5 December 2000 but this was quite clearly a matter to which Mr Darby had given express consideration as I have explained in paragraph 37 above.[50]Insofar as what is said by Mr. Darby is inaccurate, any such defect or shortcoming has to be considered in the light of the other material available to him and relied upon by him as showing that there was a risk that the claimant would abscond. It is noteworthy that there were a substantial number of other reasons as to why Mr Darby regarded there to be a risk that the claimant would abscond if he were to be given unescorted community leave and I have already outlined those in paragraphs 30 to 37 above. In my view, these factors were matters on which Mr. Darby was entitled to rely and which entitled him to reach the conclusion that there was a risk that the claimant would abscond. So I am unable to accept Mr. Buttler’s submission that any inaccuracies of Mr. Darby impugn his decision.

Ground 2: Defective Risk Assessment

[51]Mr Buttler points out that section 41 (3) (c) (i) of the Act does not expressly specify the matters that the Secretary of State should take into account in performing his functions. He contends that the purpose of section 41 (1) of the Act is to protect the public from serious harm and that the power of the Secretary of State to refuse the RMO’s application must be used for the purposes of protecting the public from harm. This, he says, entails considering the probability and magnitude of the risk of potential harm that might be caused to the public.[52]Mr Buttler contends that the main basis advanced by the Secretary of State in support of his contention that the claimant is at risk of absconding is that fact that he “stands to be returned to Turkey” either because his asylum application failed or because of the January 2006 deportation order but he submits that this concern is nothing more than a statement of the claimant’s immigration status. So he contends that appealing against a deportation order does not provide evidence of any risk of the claimant absconding nor does either the nature of the claimant’s offence or the imposition of a restriction order. He also challenges Mr Darby’s reliance upon the claimant’s concern of reprisals in support of his assessment of the risk of absconding.[53]I agree with Mr Henshaw that the Secretary of State did not rely simply on the claimant’s immigration status as “the principal basis” for assessing a risk of absconding. As I have explained, not only is the claimant liable to be deported as a failed asylum seeker but he is also more importantly subject to a deportation order with Turkey being designated as the country to which he will be sent. In this connection, it is very significant that in his asylum claim, the claimant has contended that he has a well-founded fear of persecution in Turkey and he has expressed concern about returning there. Although such concerns were not accepted as being well-founded, they nevertheless showed that the claimant himself was deeply concerned about what would happen to him if he were to be returned to Turkey and that fear of being returned to Turkey might well have influenced his conduct.[54]Furthermore, I cannot agree with Mr Buttler that Mr Darby was in any error in taking into account the claimant’s concerns about the fear of reprisals from the family of the victim. These fears are borne out by the references in the report from Dr de Sousa which show that on 7 July 2004, 11 September 2004, 13 October 2004, 20 October 2004, 10 November 2004 and 12 January 2005, these fears were referred to by the claimant. Clearly such fears are significant when an application for unescorted community leave is under consideration because if the claimant were to be given such leave, he could then be found by those seeking reprisals and if that were to occur, he would then lack the protection afforded to him against those people while he remained in Chase Farm.[55]I do not consider there is any merit in the criticism of Mr Darby for assuming that the claimant would move to or frequent a Turkish community when on unescorted community leave. Although the claimant’s written skeleton argument indicates that he speaks English, the evidence shows that he has used interpreters. It is also noteworthy that at the time of the offence, he was living in a Turkish community in Tottenham and that his victim was a member of that community. Ground 3. Failure to consider the MHRT’s decision.[56]Mr Buttler contends that the Secretary of State failed to consider the decisions of the MHRT which he says were relevant in two ways. The first way was that the MHRT both in its written reasons and in its recommendations recommended to the Secretary of State that the RMO should consider the implementation of shadow leave. The second way in which it was said that the decision of the MHRT was relevant was that it reached conclusions on the potential risk which the claimant would pose to the public if he was conditionally discharged.[57]In support of this contention, reliance is placed on, for example the statement in the reasons given by the MHRT for its decision on 10 May 2005, which was that there was no evidence in respect of the claimant that: “7.6…in his present settled state he presents anything other than a low risk to the public and his continuing detention in disproportionate to such risk especially as he does not need medication”.[58]To support his argument, Mr Buttler relies on the undertaking given to Parliament on behalf of the then Home Secretary in 1987 that: “Any such recommendation received in the Home Office is acknowledged, and any comments are offered which can usefully be made at that stage. Correspondence with the tribunal is copied to the patient’s responsible medical officer since it is for this officer to consider the recommendation in the first instance. If the responsible medical officer submits a proposal based on the tribunal’s recommendation, full account is taken of the tribunal’s views. At any subsequent hearing of the case, the statement which the Home Office provides will explain the outcome of any recommendation which the tribunal has made” (Douglas Hogg MP, HC Vol.121, cols 261, 262, October 28, 1987).[59]Mr Buttler submits that the Secretary of State is required to take full account of the MHRT’s view especially as it is the decision-maker, which has the statutory duty to decide if it is necessary for the protection of other persons that the patient be detained in a hospital; section 72(1) (a) (ii) and section 73(1) (a) of the Act. This exercise entails consideration of the risk posed to the public by the conditional discharge of a patient.[60]Mr Buttler stressed that the MHRT had the characteristics of a court of law and it was presided over by a legally-qualified Chairman. There was also the factor that under the relevant rules, there has to be a medical examination before the hearing of the patient by a medically-qualified member of the MHRT in order to form an opinion of the mental condition of the restricted patient. This, according to Mr Buttler, gave the MHRT an advantageous position for determining the risk and the nature of a potential relapse by an applicant[61]Mr Buttler complains that the witness statement of Mr Darby does not refer to the decisions of the MHRT. Therefore, he says that it shows that Mr. Darby failed to consider many of the relevant conclusions of the MHRT relating to his low risk to the public in the light of the risk to the claimant absconding or disengaging from supervision. In addition, it is said by Mr. Buttler that by failing to consider the decision of the MHRT, the Secretary of State failed to take into account the fact that the refusal by the Secretary of State to consent to a leave of absence was hindering the rehabilitation of the claimant as it was detrimental to his health.[62]I am unable to accept this criticism because first Mr Darby’s statement made clear that he had “reconsidered all the evidence which has already been disclosed to the court”. This evidence, which had been disclosed to the court, would, as Mr Buttler correctly accepts, have included the decisions of the MHRT. Second, the March decision letter states that that Mr. Darby has; “also considered the grounds of challenge set out in the Claimant’s statement of facts and grounds and have reconsidered all the evidence, which has been already been disclosed to the Court and all the circumstances of the case which are evident from [the claimant’s]case file held at this office”[63]The claimant’s “statement of facts and grounds” inevitablyreferred to the findings and reasons of the MHRT and these included the findings on 24 February 2006 that the claimant’s mental state “remains entirely settled and appropriate”.[64]Third, it was also abundantly clear that the basis of the request to the Secretary of State, which was considered by Mr. Darby, was that the MHRT had decided that the claimant should be tested through unescorted community leave with a view to a potential discharge. Indeed if this were not the case, there could be no question of the consent of the Secretary of State being required under section 17 as that provision, which was specifically referred to by Mr. Darby in his witness statement, can only be invoked if the RMO’s imposition of conditions, are in the words of section 17 (1) of the Act, “necessary in the interests of the patient or for the protection of other persons”. These italicised words relate to the RMO’s imposition of conditions rather than to his decision to grant leave.[65]I suspect that the reason why Mr. Darby did not mention these aspects of the decisions of the MHRT was that he considered it to be so obvious that the MHRT had by that stage already concluded first that it would be safe for the claimant to be given unescorted community leave and second that this would be beneficial for the claimant’s rehabilitation because this was the basis of a section 17 application.[66]I have considered with great care whether the MHRT had made any findings as to the risk of the claimant absconding. It is true that the MHRT found that the claimant could safely be given leave on the footing that his illness could be safely managed in the community in compliance with the conditions set. It is, however, noteworthy that in the February 2006 decision the MHRT accepted the evidence of Dr Mikhail that: “although [the claimant] has been well and unmediated for some years he has been in an unsupervised, highly supported and stress free environment and it is feared that the effect of discharging him to the community without supervision and protection might be to destabilise his mental state and place the public at risk”.[67]It must also not be forgotten that the MHRT had made the relevant findings to which I have referred in paragraph 27 above. Additionally, in the May 2005 MHRT decision, it was stated at paragraph 6.2 that: “it is not disputed that when he is psychotic [the claimant] presents risks to himself and others; the clinical history discloses suicidal ideation and self harm tendencies as well as command hallucination instructing him to harm others”.[68]I am not persuaded that there were any significant facts or matters in the findings of the MHRT on the risk of the claimant absconding to which Mr Darby should have referred but to which he failed to refer. This is not surprising because the findings of the MHRT as to the risk posed by the claimant were he to abscond were not inconsistent with the conclusion reached by Mr Darby.[69]It must not be forgotten that Mr Darby expressly referred to the fact that the claimant was then mentally stable and without medication but that nevertheless in all the circumstances he did not feel this fact to be sufficient to outweigh the factors pointing against the grant of consent.[70]It is of great importance to stress that the Secretary of State has substantial knowledge of some matters of importance and relevance relating to the risk of a claimant not returning, which were not considered by the MHRT or perhaps more accurately were outside their expertise. First, the Secretary of State knew that the basis on which the claimant sought asylum was the risk of persecution in Turkey and that was relevant to the issue of the claimant absconding. Second, he knew that the claimant was appealing the deportation order on the basis that the destination of Turkey was inappropriate. Third, he was able from his experience to appraise the risk of reprisals against the claimant and the effect of this on the risk of the claimant absconding. Fourth the Secretary of State would know from his experience of the significance and relevance of these factors to the application for the claimant to obtain unescorted leave. The Secretary of State was in the circumstances of this case entitled to attach substantial weight to these factors.[71]In my view Mr Darby was also entitled to conclude using the experience of the Secretary of State that: “paranoid schizophrenia is a relapsing and remitting condition. If [the claimant] were to abscond there is a significant risk that his mental state would deteriorate and the risk posed by [the claimant] would increase accordingly. That risk is of the most serious inter-personal violence. In light of the nature of the risk posed by [the claimant] and the evidence indicating that he is an abscond risk, I am not satisfied that unescorted leave can be safely granted”.[72]All these conclusions were open to the Secretary of State. For all these reason, I am unable to accept this complaint of the claimant.

X. Ground 4: Failure to Balance Public Risk against the Claimant’s Rights

[73]Mr Buttler contends that in the light of the Secretary of State functions as set out by Lightman J in Harry’s case and to which I referred in paragraph 20 above, the liberty of a patient can only be restrained where the identified risks of harm to the public are sufficiently serious as to warrant that consequence. I agree with him that the decision of the Secretary of State has to be subject to very anxious scrutiny but it is necessary to take a common sense approach to the reasoning in that decision. After I had reached my conclusions on all issues in this case, I came across a comment by Hooper J (as he then was), which fortifies this point and explains why the claimant should not succeed on the failure to assess point. After having referred to some comments of Lord Bingham CJ in R v. The Parole Board and Others ex parte Oyston (unreported 1 March 2000 CA), Hooper J said that:
"It is well established that a court when considering reasons given by a decision maker, must be careful not to construe them "in a pedantic and nit-picking spirit"
. The court should be careful "not to seize on occasional omission and infelicities" as a ground for granting judicial review or allowing an appeal (see Lord Bingham CJ also in paragraph 46 of Oyston)" (R (On the application of M)v. Criminal Injuries Compensation Panel [2001] EWHC Admin 720 [44].[74]The criticism made by Mr Buttler is that Mr Darby made no reference to the right of the claimant to liberty and above all to periods of leave in order to give effect to the order of the MHRT for conditional discharge. It is also said that Mr Darby’s witness statement makes no mention of the impact of the refusal on the claimant’s health. Indeed, as I have explained, the essential background to the need for the decision from the Secretary of State was that the MHRT wished for the claimant to be granted conditional leave as part of his rehabilitation. Clearly the MHRT would not have reached that conclusion if it had not been concerned about the claimant’s right to liberty. These points would have been obvious to Mr Darby especially as he worked in the Mental Health Unit at the Home Office. I am quite satisfied that Mr Darby did balance the interests of the claimant against the risk of harm to the public and indeed the mere fact that this was not expressly stated does not mean or even constitute a cogent argument that Mr Buttler’s complaint is correct. The factual matrix against which Mr Darby reached the March decision was the wish by the MHRT to help the claimant to regain his liberty by first having community leave because the MHRT did not consider the claimant to have a mental illness or impairment which made it necessary for him to be detained.[75]In my view, this submission has to be considered against the background that Mr Darby was only making a decision to be effective for a short period until it was decided whether the claimant was to be deported. If he is deported, then the question of the claimant’s release will no longer be an issue for authorities in the United Kingdom. If on the other hand, the claimant succeeds with his appeal, then it will necessary for there to be further consideration of whether consent should be given to unescorted community leave, because in that event, one of the reasons why the Secretary of State has refused to consent to unescorted community leave will have disappeared.

XI. Ground 5: Failure to consider the Imposition of Conditions

[76]Mr Buttler points out correctly that the Secretary of State has power to attach conditions to leave in the same way as the MHRT may attach conditions to discharge. He noted that in its decision of 24 February 2006, the MHRT had stated that the Secretary of State was not prepared to agree to shadow leave and that this was not dealt with in Mr Darby’s statement.[77]In a further witness statement made on 14 June 2006, another Home Office official Mr. Richard Westlake (in the absence of Mr. Darby) explained that shadow leave had in the past occasionally been agreed with care teams by the Secretary of State to meet the circumstances of patients for whom unescorted community leave was considered problematic. It enabled the patient to be followed by nursing staff from the hospital without him or her knowing this and that this enabled an informed decision to be taken on whether the patient could be trusted on unescorted leave in the future. Mr. Westlake explained that the practice of shadow leave was discontinued over a year ago following disquiet about the practice for a number of reasons.[78]First, the psychiatric community held it to be unethical to send patients into the community in the belief that they were unescorted but when in fact they were being followed and to that extent they were actually escorted. Second, there was also the possibility that shadow leave could lead to a patient developing paranoid delusions about being followed if they spotted the staff “shadowing” them during leave. There would not be delusions but these feelings could lead to deterioration in the patient’s medical state thereby negating the intended effect of the leave.[79]No cogent reason has been put forward to show why this approach is incorrect or can be challenged on public law principles. Thus I consider there is no merit in this criticism.

XII. Ground 6: Unbalanced selection of facts

[80]The criticism that has been made is that the account put forward by Mr Darby in paragraph 3(e) which I have set out in paragraph 45 above is unbalanced. In support of this submission, Mr Buttler points out that there had been entries for successful and increasing leave in respect of the period between 16 June 2004 and 12 January 2005. There was also according to Mr Buttler the request made by the hospital to the Secretary of State to consent to the granting of escorted leave in advance of the claimant’s application to the MHRT where it is recorded that the claimant “was using his escorted ground leave on a regular basis and displaying good interaction with others”.[81]He also relied upon:(a) the statement by the hospital that it is still “awaiting response from the Home Office regarding the escorted home leave”;(b) the entry of 9 March 2005 stating of the claimant that “he was also noted to be utilising his unescorted ground leave on a regular basis with no problems described”; and(c) the statement of Dr de Souza in his report of 30 April 2005 that “it is important that [the claimant] is safely reintegrated into the community and this can only be achieved by gradual use of escorted community leave followed by unescorted community leave form the hospital. The clinical team are still awaiting Home Office approval to start community leave.”[82]The difficulty for the claimant is that in paragraph 3 (g) of his witness statement, Mr Darby pointed out that he understood that it would be claimed on behalf of the claimant that he had not sought to abscond from hospital whilst on unescorted ground leave and therefore this was a factor, which should be taken into account when considering the claimant’s risk of absconding while on unescorted community leave. In response to this argument, as I have already explained, Mr Darby stated that: “I would submit that the two types of leave are very different. Ground Leave occurs for limited periods, generally for one to two hours at a time, and the hospital staff tend to be very aware that patients are out and where they are. Indeed, the leave request dated 9 August 2005 states that [the claimant] had ground leave for one hour periods. Unescorted community leave can last for much longer, for example, eight to ten hours at a time, and staff are not relatively nearby, as they are in respect of ground leave. Unescorted community leave therefore can give a whole new opportunity for the patient to abscond if he wishes to do so”.[83]That was a conclusion to which Mr Darby was entitled to come. As I have already explained in paragraphs 30 to 37 above there was other material which entitled Mr. Darby to conclude that there was “a substantial risk thatthe claimant would abscond if he were to be given unescorted community leave”. He also explained for the reasons which I have summarised in paragraphs 38 to 42 above that there was “a risk of the most serious inter-personal violence” if the claimant’s mental state were to deteriorate. All these factors enabled and indeed entitled Mr Darby to reach a conclusion that cannot be impugned on public grounds that:
“in light of the nature of the risk posed by the claimant and the evidence indicating that he is an abscond risk, I am not satisfied that unescorted leave can be safely granted”

XIII. Ground 7: Inconsistent Decision Making

[84]The case for the claimant is that the decisions made by the Secretary of State in respect of the claimant’s mental health and immigration function should be the same. The basis of this submission is that on the one hand, the Secretary of State in the decision under challenge concluded that the claimant could not be safely treated in the community but in the reasons given by the Secretary of State for deciding to deport the claimant to Turkey, it was stated “it is believed you could return to the [family] home if you are deported”.[85]Thus, it is said by Mr Buttler that the Secretary of State has advanced no explanation as to why the claimant could be safely treated in the family home in Turkey but not in a hostel in the United Kingdom where he would receive 24 hour support from the community care team.[86]Mr Henshaw provides a cogent answer to this by explaining that the risks of the claimant being on unescorted community leave in the United Kingdom are not the same as those of being with his family in Turkey after deportation. He submits correctly that the risks are different because:(a) in the United Kingdom the claimant would have reason to abscond because he fears deportation to Turkey but this would not be the position were the claimant to be in Turkey; and(b) the claimant has a fear of reprisal from the victim’s family in the United Kingdom but this would not apply if the claimant were to be in Turkey.

XIV. Ground 8: Failure to explain dissatisfaction with the MHRT decision

[87]The thrust of this submission is if the Secretary of State is dissatisfied with a reason of the MHRT he must explain his concerns but that in breach of that obligation, Mr Darby’s witness statement does not either mention the decision of the MHRT or explain why the Secretary of State was dissatisfied with it.[88]The answer to this point is, as I have already explained, the Secretary of State was not dissatisfied with or in disagreement with the decision of MHRT but that the Secretary of State was entitled to and did take into account other relevant factors which entitled him to reach the conclusion that the application for unescorted community leave had to be rejected. These decisions were consistent and thus this complaint also has to be rejected. In any event, even if the Secretary of State disagreed with the decisions of the MHRT, the witness statement of Mr. Darby explains clearly with adequate reasons why he concluded that the application for unescorted community leave had to be rejected. XV. Ground 9: Procedural unfairness.[89]The case for the claimant is that the Secretary of State failed to offer to the claimant the opportunity to address him on the concerns that the claimant would abscond before he reached his decision. Mr. Buttler points out that this obligation to give the claimant this opportunity is more important because the MHRT ordered the conditional discharge of the claimant.[90]This would be a powerful point if the claimant had not been aware of the Secretary of State’s concern about the risk that the claimant might abscond. In fact, the claimant has been well aware of the Secretary of State’s stance since at least April 2005. By a letter dated 19 April 2005, the Secretary of State had informed the claimant’s RMO that his application for community leave had been refused because: “given the uncertainty surrounding [the claimant’s] immigration status we believe the risk of absconding to be too high”.[91]Later on 25 November 2005, the MHRT stated that:
“Unfortunately the [clinical] team’s efforts to implement the conditions imposed on [10 May 2005] have been impeded by [the claimant’s] immigration status. The RMO told the [MHRT] that the Home Office case worker had stated that unescorted community leave was out of the question because of his immigration status”
[92]Further, the December decision, the Secretary of State explained that:
“In considering the application for unescorted leave, the [Secretary of State] considered the risk of absconding in [the claimant’s case], because of his immigration status in this country was such that it would be inappropriate to grant such leave”
[93]The original judicial review application was challenging the December decision setting out why the Secretary of State’s decision was flawed. It is clear that the claimant put forward all factors explaining why that decision was wrong. Mr. Darby in producing the March decision explained that he had considered “the grounds ofchallenge set out in the claimant’ statement of facts and grounds.” It follows that the claimant had every opportunity to put forward all the material on which he wished to rely to show that there was no risk of the claimant absconding.[94]Mr Buttler complains that the Secretary of State did not make it clear to the claimant that he would attach importance to the fear of reprisals and the history of absconding. The material on which Mr Darby founded those conclusions was available to the claimant and it must have been obvious to the claimant’s advisors that the Secretary of State would rely on those factors. In any event, Mr Buttler has been unable to point to any cogent factors, which could or would have led the Secretary of State to change his decision if the claimant had made representations on these points. Finally, the claimant does not suggest that the Secretary of State has taken into account new material not known to the claimant. This appears to be the position because the claimant’s grounds at 22 E state “there is no indication that the Secretary of State considered any material of which the Tribunal was not aware”.

XVI. Conclusion

[95]It follows from what I have already stated that this application must be dismissed. Hopefully it will be some consolation to the claimant to appreciate that Mr Buttler has presented the claimant’s case with commendable skill as has Mr Henshaw for the Secretary of State. The handing down of this judgment has been delayed because of the unavailability of counsel on earlier dates[96]During the hearing, I asked Mr. Henshaw if the Secretary of State would agree to reconsider the March decision after the determination by the IAT of the claimant’s appeal against the deportation. By a letter dated 23 June 2006, the Secretary of State agreed(i) that he would allow the claimant an opportunity to make representations to the Secretary of State within 7 days of receipt of the decision on the appeal of the claimant against the deportation order and any subsequent decisions and(ii) that within 7 days of receipt of such representations he would reconsider the March decision as to the grant of consent for unescorted community leave. Although this was not an undertaking to the court, it reflected the Secretary of State’s “clear position”. The IAT heard the claimant’s appeal from the deportation order on 11 July 2006. By rule 22 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the IAT: “must send its determination (a) if the appeal is considered at a hearing, no later than 10 days after the hearing finishes; or (b) if the appeal is determined without a hearing, no later than 10 days after it is determined”.[97]Where, as in this case, the period in the Rules is 10 days or less, it is necessary to exclude any day, which is not a “business day” (Rule 57(1) ibid). So this judgment is likely to be followed by a further decision made by the Secretary of State which will be made before 8 August 2006, which will be about 11 working days after this judgment is handed down. Mr Buttler has contended boldly that the promise of the Secretary of State set out in paragraph 96 above “would provide the claimant with the relief sought and would amount to the defendant conceding the challenge to the impugned decision”. I am unable to agree because the Secretary of State’s promise did not impugn the March decision, which remains in force. In any event after the Secretary of State gave his promise, the claimant did not abandon his present claim.[98]When I circulated a draft of this judgment, I informed counsel that my preliminary view was that subject to any submissions from the order that should be made in the light of this judgment is that the claim be dismissed with no order as to costs save for an order for the appropriate community legal services taxation of the claimant’s costs. Both counsel agreed that was the only order I should make and I so order.