F, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2912 (Admin)

Case No CO/9418/2008

[2008] EWHC 2912 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 18 November 2008

Strand

London WC2A 2LL

B e f o r e:

MRS JUSTICE COX DBE

Between

THE QUEEN ON THE APPLICATION OF FClaimant

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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Mr R Pezzani (instructed by Messrs Campbell Taylor) appeared for Claimant

Miss K Olley (instructed by Treasury Solicitors) appeared for Defendant

J U D G M E N T

[1]MRS JUSTICE COX: I have come to the conclusion in this case that this application should be dismissed and these are my reasons for so deciding.

[2]This claimant is just 20 years old. His life has been blighted by severe emotional and behavioural problems and by mental disorder, which have contributed substantially to his committing criminal offences, many of them serious, and have led the courts to pass upon him custodial sentences of increasing length. His behaviour poses serious challenges for those who have to detain or to look after him.

[3]His most recent sentence of 30 months' detention for robbery came to an end on 12th September 2008, but he is currently detained indefinitely at Kneesworth House Psychiatric Hospital having been taken there from Stoke Heath Young Offender Institution on 12th September, the day he was due to be released.

[4]In his application for judicial review the claimant is challenging the decision of the Secretary of State for Justice dated 11th September 2008 to issue a warrant under section 47 of the Mental Health Act 1983 directing that the claimant be transferred from Stoke Heath to Kneesworth, the warrant being executed on the following day. Permission to apply was granted by Bennett J on 31st October.

[5]The written grounds raise essentially a challenge to the legal power of the defendant to transfer the claimant on the day he did and a contention that the decision to issue the warrant was irrational and not in compliance with

article 5 of the European Convention on Human Rights

. In his oral submissions before me, Mr Pezzani for the claimant focused on the irrationality and article 5 grounds, which he said were at the heart of this case. Whilst not abandoning the vires challenge this was in fact his secondary submission and it took a different form from that originally set out in the claim form. The defendant resists the claim and contends that the claimant has an adequate alternative remedy available to him in any event, namely the right to apply to a Mental Health Review Tribunal, which he has in fact exercised. The facts

[6]The claimant was born on 5th December 1987. By way of background to the events with which I am concerned, the psychiatric reports prepared on him refer to a disturbed childhood and to a history of mental health disorders. A conduct disorder was diagnosed when he was in his early teens, after he committed a number of criminal offences, and he was placed in a secure unit for six months when he was sentenced to a detention and training order at the age of 14. There are references subsequently to drug and alcohol abuse, self-harm, fire-setting and serious emotional and behavioural difficulties, an impulsive propensity and a fascination with weapons.

[7]Further criminal convictions and custodial sentences followed. In December 2004 he was convicted of a number of offences, including wounding with intent to cause grievous bodily harm, and was considered to be suffering from a psychopathic disorder within the meaning of the Mental Health Act 1983. The psychiatrist then assessing him, Dr Lawson, considered him treatable and recommended an admission to hospital, but the court passed a two year custodial sentence from which he was released on licence in October 2005. Within a short time, however, he was returned to custody having breached the terms of his licence.

[8]Following his release from custody in 2006 he was convicted in May 2006 of an offence of robbery and sentenced to two-and-a-half years' detention in a young offender institution. This is the relevant sentence for the purposes of the judicial review of his transfer to hospital.

[9]There are references in the reports to incidents of bullying, fighting and self-harm whilst he was in the institution, and to his being placed in segregation on occasions. The last day of his sentence was calculated correctly as 12th September 2008.

[10]Due to serious concerns about him and about the risks he posed on release, in 2006 the probation services commissioned a psychological assessment. The PCL-R carried out in November 2006 concluded that he was at the 99th percentile of the English male offenders in his psychopathy rating, putting him at a high risk of reoffending. An HCR 20 assessment also concluded that he was at a heightened risk of committing further acts of violence with a particular concern arising from his impulsivity. He was transferred to HMP Hindley in January 2007 and subsequently his behaviour appeared to be settling down. The relevant medical reports

[11]On 12th April 2007 the claimant was examined by Dr Isweran, consultant psychiatrist, whose report was dated 2nd May 2007. This followed a referral made by the East Hertfordshire National Probation Service to the Mental Health Services of the Hertfordshire Partnership NHS Trust. The claimant was being considered for release from prison in June 2007. After referring to the claimant's history and background, Dr Isweran reported his findings on mental state examination, stating in conclusion as follows:

"Even though F's views about crime can be seen as evidence of total lack of remorse and feelings towards others and an indication of an aggressive personality trait, the impression he gave at the interview was that of a lack of maturity and understanding of the issues mainly brought about by his lack of social interaction and education. ... There was clearly some evidence of immaturity and naivety as he never had an opportunity to interact with people in a normal and sensible way. There was also an element of him wanting to get reaction and attention from others."

His opinion was as follows:

"Currently, his mental disorder would come within the diagnosis of Dissocial Personality Disorder. This is confirmed by the psychological assessment undertaken recently. F also presents a high degree of risk of violent offending. He has been involved in many incidents of self-harm and violent acts while in prison. He was released from prison a few times and he has become involved in violent acts every time he was released and had to be imprisoned again. There were a lot of concerns about his maladaptive traits, his inability to empathise with others, his fascination with knives and guns and his impulsive nature. It is generally felt that he would re-offend, possibly involving violence, if he is released from prison. F needs to mature in his personality and needs to develop many social, living and relationship skills, if he is to be able to lead a reasonable life, without getting involved in violent and anti-social acts. This treatment can only be provided in a structured and secure environment if he is to benefit from the treatment programme. There is also some question about his treatability, and his response to treatment would depend on the nature of the therapeutic environment and the quality of the therapeutic input offered to him. If a hospital is able to accept F for treatment, I would recommend that he be transferred to the hospital under section 47 of the Mental Health Act 1983. I will refer him to Three Bridges Regional Secure Unit in the first instance to get an opinion of his suitability for admission. He also can be considered by hospitals in the independent sector. I will also refer this case to the Bed Placement and Management Service of the Hertfordshire Partnership NHS Trust for their consideration. If a hospital placement is not possible, it would be necessary to consider him for a structured placement, where the necessary therapeutic input can be provided."

No hospital placement was pursued at this time, however. The claimant was released on licence on 20th June 2007 and placed in a secure hostel from where, after a number of incidents of verbal abuse and threatening behaviour, he was excluded. On 9th July 2007 his licence was revoked and he was placed at Stoke Heath Young Offender Institution. He was referred by Dr Isweran to Rampton Hospital on 22nd August 2007 but he was found not to require high security treatment to manage the risks he posed and advice was given for contact to be made with medium secure services. An approach was made by the Bed Placement and Management Team of the NHS Trust to Kneesworth House Hospital, which is a medium secure unit.

[12]The report from Dr Morris, consultant psychiatrist at Kneesworth House, is dated 19th February 2008. It followed his examination of the claimant on 15th February. Dr Morris concluded as follows:

"Clinically, there are many soft indices that propose a diagnosis not only of ASPD and psychopathic disorder as per the legal definition, but also of clinical Clecklean psychopathy, particularly, the sense of being subtly managed and duped, the lack of remorse, the versatility of criminality, the age of onset, the difficulty in being contained in a secure environment, and the psychological sophistication, cynicism and contempt present in his analysis of the prison environment. Regarding treatability, there is evidence that his behavioural pattern evolves in response to active management - for example his account of being a 'hermit' now - whereas before he was one of the 'top people', similarly, his degree of psychological mindedness illustrated by his account of his father, and his taking responsibility for some of the difficulties in this relationship. Similarly, there were other aspects of his history that he seemed to completely not to have reflected upon, for example the reported tendency to be able to back down, his attitude to his mother and so on. Regarding suitability for admission to the Kneesworth Unit, I have some concern about his manageability therein -- in the context of him having to be moved around the prison estate to contain his institutional behaviour -- and given my assumption that he has considerably minimised his prison behavioural record to manage my view of him. F has also been assessed by a nursing colleague independently, and our process is to have an MDT [multi disciplinary team] discussion, where the two impressions of referred patients can be explored. At this point, therefore, I am not in a position to be clear whether we would offer F a bed, but would hope to be able to get back to you within the week. In view of F's various dates for release, I would be happier for him to be assessed in the context of a section 47/49 prison transfer rather than a section 37(N) - so that if there were considerable difficulties, or we assessed him as untreatable (which is a significant risk with high PCL-R scoring patients), there would be an option for his return to being managed in a criminal justice setting. Thus, if we can offer a bed, it would seem to be more sensible for this to be sooner rather than later."

In the event an admission to Kneesworth House was not pursued at this time. In his report to the Parole Board in February 2008, Dr Isweran referring to Dr Morris' report had this to say as to the current position:

"I also referred F to Rampton Hospital but after going through the reports they have decided not to assess him, as he does not need high security treatment. He was then referred to the Bed Placement and Management Team of the Hertfordshire Partnership NHS Trust, who is responsible for funding for treatment in medium secure units, for patients from Hertfordshire. The Bed Placement Team referred him to Kneesworth House Hospital and I enclose a copy of their report. As you would see they have questioned his treatability and they offered to take him only while he is under section 47/49 which means that he would have to return to prison if he was not found to be treatable. You will also see in my report I also questioned his treatability but I suggested that he would only benefit from treatment if he was admitted to a suitably established secure unit that would be able to meet the needs of patients with personality disorder. The Bed Placement and Management Team has considered these reports and decided against funding for his placement in any hospital. They came to this decision on the grounds that there are significant reservations about his treatability and they also consider that if he is offered treatment in a hospital it is not certain that treatment would be effective. They are not happy to detain him in hospital just to manage his risk. There is no question about the risks that F presents. He will present a significant degree of risk if he is released in the community. In these circumstances the local services can only try to do whatever possible to reduce the level of risks he presents within the sanctions that are possible and the resources available in the community."

Dr Isweran expressed the view that further discussions were necessary to discuss the claimant's future options.

[13]Dr Isweran then prepared a further report for the Parole Board dated 12th May 2008. This followed an attempt to see and assess the claimant again at Stoke Heath which failed because the claimant refused to see him and apparently made a number of threats towards him. In that report Dr Isweran referred to the Bed Placement Team's rejection of the application for funding on the ground of concerns as to the claimant's treatability and the effectiveness of treatment available. He then said as follows:

"The health services have rejected my application for funding for his placement. This leaves no option to find any placement within the health services, including any residential placements run by them. The options now available would include his mother's home, a probation hostel, a rehabilitation placement, or his own flat. None of these options are ideal and apart from the option of his mother's home, there are no other options that will be practically possible to achieve."

In his concluding paragraph he said:

"I appreciate that F presents with a high degree of risks and the management plan that is proposed would not be able to contain all the risks adequately and he would continue to present a risk in the community. However, he does not have a clear and treatable mental disorder and as such the admission to hospital is not an option. The follow-up support provided by the agencies under the MAPPA, which is made [as] part of his licence conditions would provide some containment of his risks. This is the best option available at present."

[14]On 16th May, after a hearing on the previous day, the Parole Board declined to order the claimant's release, stating that the claimant "would like now to be released and is willing to work with probation and with the community mental health team", but concluding that the risk posed by him was "unacceptably high and not safely manageable in the community." They decided that the claimant had to remain in custody until his sentence expiry date and expressed the hope that appropriate measures would be taken to address his undoubted needs.

[15]Matters moved on and the sentence expiry date approached. In August 2008 the difficulties in providing a suitable care package in the community led to an offer of re-assessment from Kneesworth House and to an agreement with the Bed Placement Team as to the necessary funding. Dr Morris therefore came to visit the claimant again on 12th August, but the claimant refused to see him. Having reviewed the history, Dr Morris concluded in his report that the claimant should be referred to a high secure hospital, although he noted the difficulty in sectioning an individual whom he had not personally assessed for the past six months. General concern was expressed as to the possibility that the impact of being detained at the end of his sentence would adversely affect the claimant's generally settled institutional behaviour and the ability to contain him in conditions of medium security.

[16]On 28th August Dr Isweran therefore referred the claimant for admission to the Personality Disorder Unit at Rampton or to the DSPD service if found appropriate. Dr Isweran said:

"My opinion is that F presents a serious risk if he is released from prison and he needs treatment in a secure environment to help him to develop the skills necessary for him to be able to live in the community."

The claimant was assessed for this purpose on 29th August by Dr Ijomah, consultant psychiatrist, whose report is dated 8th September 2008. Dr Ijomah, it seems, had been able to interview the complainant on G-wing and to prepare an up-to-date assessment. He set out the history in some detail and included a list of adjudications since his placement at Stoke Heath and incidents of self-harm. In conclusion Dr Ijomah considered that the claimant was suffering from personality disorder in that:

"[He] suffers from a long standing enduring maladaptive pattern of thinking, feeling, behaving and relating to others. This appeared in late childhood and continues to manifest itself in adulthood causing him personal distress and also distress to others around him. There are significant traits of anti-social personality disorder, especially the gross and persistent attitude of irresponsibility and disregard for the social norms, rules and obligations. This appears supported by a pattern of defiant behaviour and conduct disorder in childhood."

However, he considered that the claimant was not of grave and immediate danger and that admission to a high secure hospital environment would not be in his best interests. With regard to treatability, Dr Ijomah considered the claimant to be treatable and motivated for treatment. He had engaged in previous treatments, although in the past they had been brief, and there would be a number of barriers to overcome, but his motivation "will fluctuate with external circumstances and adverse events". In relation to the kind of treatment required, Dr Ijomah said that the claimant:

"[He] seems most likely to benefit from treatment targeting his emotional regulation and impulsivity. This would be best [achieved] through cognitive behavioural modality. F tells me [he] has undergone these in the past but the more effective treatments are of longer duration, up to one year. This would involve primarily either anger management or delectable behaviour therapy (DBT). The general aspects of these treatments would be involving group work and individual treatment work. There would be an educational element to aid his understanding of emotions, behaviour and cognitions. This would be coupled with a means of obtaining self-control over his emotions and cognition either through the relaxation techniques, mediation etc. After practice, testing out the effect of treatment either through provocation or role playing problematic situations would give an indication of the treatment effectiveness."

In conclusion he stated that the claimant:

"... could be considered to meet the legal criteria of psychopathic disorder and his condition I would consider would be amenable to treatment. F states that he is willing to undergo treatment though his motivation will fluctuate over time."

The warrant

[17]The warrant was issued and signed by the defendant on 11th September 2008 - the day before the claimant's release from Stoke Heath. It states so far as relevant as follows:

"TRANSFER DIRECTION WITHOUT RESTRICTIONS IN RESPECT OF PERSON SERVING SENTENCE Whereas the person mentioned above is serving a sentence of imprisonment within the meaning of section 47 of the Mental Health Act 1993: And whereas the Secretary of State is satisfied by the reports of two medical practitioners, of whom at least one is a practitioner approved for the purposes of section 12 of the said Act, that the said person is suffering from psychopathic disorder within the meaning of the said Act and that the mental disorder is of a nature or degree which makes it appropriate for the patient to be detained in a hospital for medical treatment and that such treatment is likely to alleviate or prevent a deterioration of his condition. Now, therefore, the Secretary of State, being of opinion, having regard to the public interest and all the circumstances, that it is expedient so to do, in pursuance of the said section 47 by this warrant directs that the said person be removed to and detained in Kneesworth House Hospital, Hertfordshire."

Two form 1305 medical report forms were requested and completed for the Prison Service from Dr Isweran on 8th September 2008 and Dr Morris on 10th September 2008. In proforma style paragraph 3 on the form contained a declaration signed by each doctor that he was of the opinion (a) that the claimant was suffering from psychopathic disorder within the meaning of the Mental Health Act 1983 and (b) that the mental disorder from which the patient is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for treatment, and (c) that such treatment is likely to alleviate or prevent deterioration of his condition. The form of words used in paragraph 3 follow the statutory provisions in section 47 of the 1983 Act (unamended). The second page of form 1305 enables the doctor to provide details, at paragraph 4, of the type of mental disorder and description of symptoms and, at paragraph 5, of the reasons for concluding that the medical disorder is of a nature or degree which makes detention in hospital for medical treatment appropriate. There is no paragraph requiring further elucidation of the doctor's opinion in paragraph 3 that such a treatment is likely to alleviate or prevent deterioration of the patient's condition.

[18]Both doctors provided further details of the claimant's personality disorder at paragraph 4. At paragraph 5 Dr Morris said this, regarding the reasons for hospital treatment:

"F's personality difficulties have demonstrated a high degree of severity as evidenced by his index offence and behaviour and inabilities to maintain his discharge on licence."

Dr Isweran said as follows:

"F has described hearing voices, but they do not conform to the description of hallucination. He needs to learn social skills and mature in his personality if he is to survive successfully in the community. Previous attempts to manage him in the community ... have failed. If he is released from prison he will become involved in serious offending behaviour."

On the same day that the warrant was issued by the defendant a notice of supervision relating to the claimant's release plan whilst in the community was being prepared. This informed the claimant that his sentence expired on 12th September 2008 and that on his release from custody he would be under the supervision of a probation officer or local authority social worker for three months until 11th December 2008. He was given details as to where and to whom he should report and the conditions of supervision with which he must comply.

[19]On the morning of 12th September this notice of supervision was handed to the claimant by one of the prison officers who explained its terms and asked him to sign it, which he did. However, at the same time as the claimant was preparing for and expecting to be released from custody, preparations were being made for the execution of the warrant and for service upon him of the transfer direction order. Staff from Kneesworth Hospital arrived at Stoke Heath and waited for the claimant in the reception department which is located within the main perimeter fence and has no direct access to the main street outside, exit from the prison being achieved only through a series of corridors and locked gates.

[20]At about 9.30 am on 12th September in accordance with normal practice the claimant was escorted from the wing to the reception department where he changed into civilian clothes and collected his property. There he was served with the order for transfer and then escorted from Stoke Heath to Kneesworth by the hospital staff. The claimant knew nothing about his transfer to hospital until he arrived in reception and was served with the order.

[21]The person who signed the warrant on behalf of the defendant was Kalpna Verma, casework team leader and higher executive officer in the Ministry of Justice Mental Health Unit, whose duties include deciding whether prisoners should be transferred to hospitals under section 47 of the Act.

[22]On 10th September the claimant's file, together with various medical reports, was referred to her with a view to consideration of the claimant's transfer to Kneesworth House Hospital under section 47. She analysed the file and took into account the matters listed at paragraph 3 of her witness statement dated 7th November 2008. These were, in addition to the medical reports, the nature of the index offence (namely robbery involving a threat of violence), the very large number of the claimant's previous convictions, the level of security at Kneesworth House, the risk assessment form, the prison transfer form and the sentence expiry date. In relation to medical reports, those considered by her included the report of Dr Isweran dated 2nd May 2007, Dr Ijomah's report of 29th August 2008 and the report forms F1305 completed by Dr Isweran and Dr Morris.

[23]Miss Verma says this at paragraph 3.3 of her statement:

"As Dr Isweran's report on interview was dated May 2007 and that of Dr Ijomah was not by a doctor who had completed a form F1305, the advice of the Casework Manager, Chris Kemp, was sought as to their validity and he advised that as attempts had been made by the doctors to see the claimant and he had refused to see them, coupled with the fact that the reports indicated that he was suffering from a psychopathic disorder, being an enduring condition, that the medical evidence was sufficient."

She states then that she considered the criteria under section 47 and satisfied herself that the claimant was suffering from a mental disorder, that the level of security at the hospital proposed for the transfer was adequate and that "the medical reports were valid." After checking the accuracy of the warrant she decided to issue it and she then faxed it to Stoke Heath on 11th September.

[24]I say now that there are further reports in the bundle from Dr Isweran dated 22nd October and 10th November 2008 and from Dr Morris dated 4th November 2008. These reports have been provided after the claim for judicial review was lodged and were not before the Secretary of State at the time of the decision on 11th September. I shall refer to them again later on in this judgment.

[25]The claimant is challenging the lawfulness of the decision of 11th September to issue a warrant on the grounds I have referred to, but I need to set out first the relevant statutory provisions and certain parts of the Code of Practice issued by the Secretary of State under section 118 of the Act. I note for completeness that section 4(7) of the Mental Health Act 2007 amends section 47(1) and that amongst other things the requirement for the Secretary of State to be satisfied that hospital medical treatment is likely to alleviate or prevent a deterioration of the prisoner's condition has been replaced by a requirement for him to be satisfied that appropriate medical treatment is available for him. This amendment does not however affect any order for removal to hospital made under the 1983 Act before 3rd November 2008 (see paragraph 2(1)(b) of schedule 10 to the 2007 Act) and does not apply therefore in this case.

[26]The relevant legislative provisions were considered by Dyson J in R v Secretary of State for the Home Office ex parte Gilkes

[1999] EWHC Admin. 47

. He set them out in full at paragraphs 8 to 9 of his judgment. They are as follows: "(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners---(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or other mental impairment; and

(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; The Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital (not being a mental nursing home) as may be specified in the direction; and a direction under this section shall be known as 'a transfer direction'. (2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction." ]

[27]The Code of Practice issued by the Secretary of State under 118 of the Act provides so far as material:

"3.13 The need for in patient treatment for a prisoner must be identified and acted on swiftly, and contact made urgently between the prison doctor and the hospital doctor. The Home Office must be advised on the urgency of the need for transfer. 3.14 The transfer of a prisoner to hospital under the Act should not be delayed until close to his release date. A transfer in such circumstances may well be seen by the prisoner as being primarily intended to extend his detention and result in an uncooperative attitude towards his treatment."

At paragraph 12 of his judgment Dyson J said as follows in relation to the operation of these provisions:

"Section 47(1) requires the Secretary of State to be 'satisfied by reports from at least two registered medical practitioners' that the two conditions specified in paragraphs (a) and (b) of the subsection are met. Only if he is so satisfied may he exercise his power to transfer, and then only if he is of the opinion that it is expedient to do so having regard to the public interest and all the circumstances. If the reports are manifestly unreliable, then the Secretary of State cannot reasonably be satisfied that the two conditions are met on the basis of the reports, and a decision to rely on them in such circumstances will be capable of successful challenge by judicial review. A medical report may be unreliable for a number of reasons. It may on its face not address the relevant statutory criteria. It may be based on an assessment which is so out of date that the mere fact of a lapse of time will be sufficient to render it unreliable. It may be unreasonable to rely on a report based on an assessment conducted an appreciable, but not inordinate, time before the decision to transfer where the mental disorder is a fluctuating and unstable condition and/or where there has been a change of circumstances since the assessment was made. In each case, it will be for the Secretary of State to consider whether in his judgment the medical report is one on which he can safely and properly rely so as to be satisfied that the conditions set out in paragraphs (a) and (b) of section 47(1) are met. One of the considerations that will be uppermost in his mind is whether the assessment on which the report is based is sufficiently recent to provide reliable evidence of the patient's current mental condition."

[28]

Article 5 of the Convention

provides so far as relevant as follows:

"Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law: ... (e) the lawful detention ... of persons of unsound mind."

Grounds of challenge

[29]Mr Pezzani submits on the claimant's behalf that the decision on 11th September to issue the warrant should be quashed, principally on the ground that on the material then before him the Secretary of State could not have been satisfied by reports from two registered medical practitioners, as he must be under section 47(1)(b), that hospital treatment was likely to alleviate or prevent deterioration of the claimant's condition. He submits that this is so even assuming that the medical reports were sufficient for him to be satisfied at that time that the claimant was suffering from a psychopathic disorder of a degree which made it appropriate for him to be detained in a hospital for medical treatment. Given the fact that neither Dr Isweran nor Dr Morris had seen the claimant for many months and had not prepared up-to-date reports about him, the Secretary of State could not reasonably be satisfied as to these matters in accordance with the provisions of section 47. Even if he could, however, there was no evidence on which he could be satisfied as to the third requirement of treatability.

[30]In my view whilst it is correct that neither Dr Morris nor Dr Isweran had seen this claimant for some time, I have no doubt that the defendant was entitled to conclude on the reports of all three doctors before him that he was satisfied both that this claimant was suffering from a psychopathic disorder and that its nature was such as to make it appropriate for him to be detained in a hospital for medical treatment. The nature of the claimant's disorder was such that it was an enduring rather than a fluctuating condition and, in any event, the reason for the absence of up-to-date reports from Dr Morris and Dr Isweran was the claimant's own refusal to see them and to be examined by them for the purpose of such reports.

[31]I consider that the contents of the reports from those two doctors which were before him, together with the report of Dr Ijomah, was sufficient for the Secretary of State to be satisfied as to the first two requirements in section 47(1)(a) and (b).

[32]In relation to treatability however Mr Pezzani is on stronger ground. Whilst it is correct that Dr Isweran and Dr Morris completed the appropriate proforma declaration of opinion at paragraph 3 of the F1035 reports, no reasons for that opinion were provided or even requested in the body of the form. There was a need therefore to look to the more detailed medical reports, as Miss Verma accepts, in stating that she took into account the medical reports of all three doctors when considering whether to issue the warrant. Mr Pezzani accepts that the defendant could rely on Dr Ijomah's report in relation to treatability and I agree that his opinion in that regard was clear. He however was not asked to complete a form F1305, which is why Miss Verma sought advice as to the sufficiency of the medical evidence. The real question in this case therefore centres on the opinions of the other two doctors and the necessity for the Secretary of State to be satisfied as to treatability on the reports of at least two registered medical practitioners.

[33]Miss Olley for the Secretary of State took me to one or two passages in the relevant reports of Dr Isweran and Dr Morris in an effort to persuade me that it was clear that they were saying that treatment was likely to alleviate or prevent a deterioration of the claimant's condition. Reading these reports as a whole, however, I do not agree that they can properly be read in that way. In their earlier reports both doctors appear to me to be raising serious doubts as to the treatability of this claimant's psychopathic disorder. Dr Morris referred in his report of 19th February 2008 to the significant risk that the claimant as a high PCL-R scoring patient would be assessed as untreatable. Dr Isweran in his report of 2nd May 2007 also referred to there being some question about his treatability which would depend upon the nature and quality of the environment and therapeutic input provided. In his report to the Parole Board in February 2008 Dr Isweran referred to the decision of the Bed Placement and Management Team that there are significant reservations about his treatability and that if he is offered treatment in a hospital it is not certain that treatment would be effective. Dr Isweran did not indicate there whether he agreed or disagreed with that view, nor did he in his later report of 12th May 2008, where in the final paragraph he states that, whilst appreciating the high risk that the claimant presents, he does not however "have a clear and treatable mental disorder and as such the admission to hospital is not an option."

[34]Dr Isweran in his report of 22nd October 2008 (submitted after the claim was lodged) states when referring to this paragraph that:

"This conclusion was based on the decision of the Bed Placement Team and I was reflecting the position of the Hertfordshire Partnership NHS Foundation Trust, of which I am an employee. It did not reflect my own personal views. My personal view always was that F should be admitted to a hospital."

However, Dr Isweran did not say this in his report of 12th May and in my view it is difficult to read that report as conveying within it an opinion of others with which he disagreed. Further, even in his 22nd October report, Dr Isweran nowhere expresses the opinion that hospital treatment is likely to alleviate or prevent a deterioration of this claimant's psychopathic disorder.

[35]Having regard to their most recent and detailed reports I recognise that part of the difficulty in relation to the earlier reports is that neither Dr Morris nor Dr Isweran was addressing the section 47 tests expressly and in particular the issue of treatability, being more concerned about the risks that the claimant posed and absent the proper management of him and of those risks. At best, however, these reports were ambiguous and were inconsistent with the declarations in form F1305. They required further investigation and clarification in my view before the decision was taken to issue a warrant which led to the transfer to hospital and indefinite detention of this young claimant. The evidence indicates that no such investigation took place. Miss Verma herself does not mention treatability or the specific requirements of section 47, stating that she satisfied herself only that the claimant was suffering from a mental disorder, that the level of security at the proposed hospital for transfer was adequate and that "the medical reports were valid". The advice she sought was expressed to be as to the "validity" of the reports, given that Dr Ijomah had not completed a form F1305 and that Dr Isweran's last interview with the claimant was in April 2007. Treatability does not therefore appear to have been considered.

[36]In my judgment, for the reasons given, at the time the decision was taken to issue the warrant the Secretary of State could not have been satisfied by reports from at least two registered medical practitioners that hospital treatment was likely to alleviate or prevent a deterioration of this claimant's condition. It was therefore unreasonable in the Wednesbury sense for him to decide to issue the warrant on 11th September. Further, the claimant's detention pursuant to that warrant seems to me to have been in violation of

article 5(1) of the European Convention

of Human Rights, that detention being neither in conformity with domestic law, nor for the particular reasons I have given, pursuant to the lawful ordering of execution of measures involving the deprivation of liberty of a person of unsound mind -- see Winterwerp v Netherlands

[1979] 2 EHRR 387

[37]In these circumstances it is unnecessary for me to deal in detail with Mr Pezzani's secondary vires challenge to the decision to transfer the claimant on the day of his release; and his submissions that to do so effectively deprived the claimant of the procedural protections to which he would have been entitled, had hospital admission been genuinely considered appropriate or necessary and pursued as it should have been under section 2 or section 3 of the 1983 Act. I have to say that this was, in my view, a difficult argument to sustain on the facts of this case. Whilst the warrant was, regrettably, issued and served very late in the day, it was not executed after the claimant had been released from custody and, as it seems to me, the defendant clearly had the power to transfer him when he did. The undesirable risks attendant upon such a late transfer were referred to by Dr Ijomah and indeed they appear in the Code of Practice issued under the Mental Health Act by the Secretary of State. However, if the requirements of section 47 had otherwise been complied with the defendant in my judgment clearly had power to transfer the claimant to hospital on the day that he was due to be released. I note that the claimant in the Gilkes case was also transferred on the last day of her sentence and that Dyson J rejected an irrationality challenge brought on that ground alone, although recognising that it is a relevant circumstance to have regard to in deciding whether in all the circumstances it is expedient to make a direction. Here the due date of this claimant's release was expressly considered by the defendant.

[38]For the reasons I have set out earlier, however, the Secretary of State should not have issued the warrant in respect of the claimant on 11th September. If that was an end of the matter I would feel constrained to make an order quashing his decision to do so. However, since that decision was made, further lengthy and detailed reports have been provided to the court from both Dr Morris and Dr Isweran. In his report dated 4th November, Dr Morris has addressed all the section 47 requirements in detail. In relation to treatability he refers to clinical evidence that F's personality difficulties are treatable in terms of alleviating the condition given his ability to change his institutional behaviour in prison and his receptiveness to engagement psychologically, and he states that the likelihood of him making progress in a specialist treatment environment is greater than 50 per cent. He spells out the treatment progress in detail on page 4 of his report and concludes that in the context of an 18 to 30 month inpatient PD treatment plan:

"F is more likely than not to stabilise out and reduce somewhat the risks that he presents to others."

He refers to there having been a turbulent start at Kneesworth House, but says on page 3:

"Dr Ijomah (Rampton) and myself both believe that there is evidence that F will be able to make progress with his personality difficulties in a specialist treatment environment..."

[39]Dr Isweran saw the claimant again on 5th November and in his detailed report of 10th November addresses the current situation. The claimant, he states, agreed that he needed some treatment and there is evidence to indicate that he would respond to treatment if he continues to stay at Kneesworth House. In his conclusions he states as follows:

"F has shown some improvement in the maturity of his personality since my previous assessment. If he is guided appropriately to learn from his experience and to develop the skills necessary for him to contain his anger and the inappropriate urges, it would be possible to improve his coping skills for him to be able to live successfully in the community. The psychological interventions and the general management that is being planned at Kneesworth House Hospital would help F to achieve the above aim. He will also need to be rehabilitated gradually in the community so that his transition to the community life would be smooth and he would be in a better position to cope with community life. This would considerably reduce the risk he presents. In conclusion, my opinion is that F suffers from Psychopathic Disorder, within the meaning of the Mental Health Act 1983 and that the mental disorder he is suffering from is of a nature and degree which makes it appropriate for him to be detained in a hospital for treatment. I am also of the opinion that the treatment that is planned for him is likely to alleviate his condition. My recommendation is that he should continue to remain in Kneesworth House Hospital under section 47/49 of the Mental Health Act 1983 and continue to receive treatment."

In these circumstances I am satisfied that if the defendant had carried out further enquiries and sought to clarify the opinions of Dr Morris and Dr Isweran, with particular regard to the statutory requirements of section 47, in advance of the decision of 11th September, he would still have made the transfer direction and that direction would have been unimpeachable both in domestic law and under the Convention. It would not therefore be right in my view to exercise my discretion to grant any relief to this claimant.

[40]I add for completeness that the right to apply to a Mental Health Review Tribunal did not seem to me to provide an adequate remedy for this claimant. Leaving aside the issues raised in the skeleton arguments as to the delays inherent in that procedure, this statutory tribunal, whilst able to order the claimant's discharge if appropriate, could not deal with the lawfulness of the original detention. In the event however it is unnecessary for me to determine that issue in this application which, for the reasons I have already given, must be dismissed.

[41]MISS OLLEY: I have no consequential applications.

[42]MR PIEZZANI: My Lady, I have two applications. The first is for detailed assessment of the claimant's publicly funded costs.

MRS JUSTICE COX: Yes.

[44]MR PIEZZANI: I think that is the right language.

MRS JUSTICE COX: Yes, I think it is and I do not see any difficulty with that.

[46]MR PIEZZANI: My Lady the other application is for permission to appeal your Ladyship's judgment. (Pause)

[47]MRS JUSTICE COX: Do you want to say anything further in support of that submission or are you simply leaving it at this stage as a statement of intent?

[48]MR PIEZZANI: No, I am going to give reasons for my application, I am trying to formulate them in my mind. Your Ladyship has found that this man was detained in breach of article 5(1) which obviously is a serious finding, as well as being in breach of -- well unreasonable in Wednesbury terms.

[49]MRS JUSTICE COX: It flows from my findings really as to the failure to comply with section 47 requirements.

[50]MR PIEZZANI: Yes. It follows because, for example, the consequences of your Ladyship's finding are that this claimant was deprived of his liberty not in accordance with a procedure prescribed by law but the requirement, basic requirement of article 5(1) and in relation to article 5(1)(e) your Ladyship will recall my submissions about the Winterwerp quality requirements reliably shown to be suffering from unsound mind and kind and degree of mental disorder that warrants detention. Off the top of my head that is the language used in Winterwerp. So 5(1)(e) which allows lawful detention of somebody of unsound mind by reference to the Winterwerp criterion in relation to 5(1)(e) is also, I think, as your Ladyship said in the judgment, breached in this case. Given that, the difficulty that arises from your Ladyship's judgment is that a man is deprived of his liberty -- well, has been deprived of his liberty in breach of article 5 but remains deprived of his liberty notwithstanding the court's judgment. Not only that, but he has lost the opportunity to argue what he could have argued on 12th September of this year because your Ladyship's judgment being based in evidence as to treatability of course that is now no longer the law and so whilst he could have argued in September that what Dr Morris and Dr Isweran had had said in the preceding fifteen months brought into question that, notwithstanding what they have said since then, he no longer can argue that. He cannot argue it before the Tribunal; he cannot make any argument based on it because it is no longer the law. But in essence I would just keep it simple, perhaps, and say that given the seriousness of the issue, especially given that your Ladyship has found he is in breach of article 5, I would seek permission to appeal simply on the basis that with the greatest of respect of course to your Ladyship's decision, the subsequent evidence of Dr Isweran and Dr Morris should not prevent the having of his liberty somebody who has been found to be detained, only a relatively short time ago, in breach of article 5 and unreasonably in domestic public law terms.

[51]MRS JUSTICE COX: Thank you Mr Pezzani. You will have to deploy those arguments elsewhere. I take the view that refusal of relief and dismissal of this application was ultimately a matter of discretion in the particular circumstances of this case and therefore there is no real prospect of success for an appeal. So I refuse the application. Can I ask both counsel to agree the final form of the order following the judgment I have given? Thank you very much indeed.