PP, R (on the application of) v Secretary of State for Justice [2009] EWHC 2464 (Admin)

[2009] EWHC 2464 (Admin)

Case No CO/1564/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 14th July 2009

Strand

London WC2A 2LL

B e f o r e:

KEITH LINDBLOM QC

Sitting as a Deputy High Court Judge

Between

THE QUEEN ON THE APPLICATION OF PPClaimant

Between

SECRETARY OF STATE FOR JUSTICEDefendant

Computer-Aided Transcript of the Stenograph Notes of

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(Official Shorthand Writers to the Court)

Mr R Pezzani (instructed by Inyama & Co) appeared for Claimant

Ms G White (with Miss N Patel attending for judgment)(instructed by the Treasury Solicitor) appeared on behalf of the Defendant

J U D G M E N T

[1]THE DEPUTY JUDGE: Introduction

[2]This is a claim for judicial review of the decision of the Secretary of State, issued in a letter dated 17 November 2008, refusing to grant the claimant a period of trial leave from Ashworth Hospital, where he is at present detained under the Mental Health Act 1983 ("the 1983 Act"), to Thornford Park Hospital, where he would be detained under conditions of lesser security. The claim has come before the court for an expedited hearing of the claimant's application to apply for judicial review, rolled up with the hearing of the substantive application in the event that permission is granted. At the outset of the hearing before me an application was made on behalf of the claimant under CPR 39.2 for an order that he should be referred to, for the remainder of these proceedings, as "PP". That application was not opposed. Having considered it in the light of the considerations to which that part of the CPR refers, I acceded to it. Factual background

[3]The claimant is now 71 years old. In December 1972 he was convicted of two offences: the rape and the manslaughter of a 14-year old girl. He had a history of very serious criminal activity before those convictions, including convictions for violence and sexual offending which led to his imprisonment in 1960 and in 1966. After his convictions in 1972, the claimant was diagnosed as suffering from a psychopathic disorder and was detained under a restriction order made under the predecessor provisions to sections 37 and 41 of the 1983 Act. He is at present detained at Ashworth Hospital in conditions of high security.

[4]Apart from a brief period in 1996 and 1997, after the claimant had been granted "trial leave" to a medium security hospital called Arnold Lodge, which did not prove a success, he has been detained in high security hospitals ever since he was convicted: a period of nearly 37 years. In January 1996 he suffered a myocardial infarction, which required treatment at a general hospital. He has since then experienced other problems with his physical health.

[5]Between November 1989 and August 2007, the claimant's case was reviewed by Mental Health Review Tribunals on eight occasions. In August 1999 and July 2002 it was recommended that he be transferred to a medium security hospital. The tribunal which considered his case in August 1999 recommended that he should be allowed a period of trial leave at Kemple View. The tribunal which considered the claimant's case in 2002 decided that he should not be discharged. It was, I understand, agreed in the evidence before that tribunal that the claimant posed a high risk of re-offending. The tribunal recommended that the claimant should be given the opportunity of trial leave at Chadwick Lodge. That recommendation, however, was not implemented. The claimant's responsible medical officer was then opposed to his being moved to Chadwick Lodge. The Secretary of State, whose consent to the move was required, decided it would not be appropriate. The decision not to implement the recommendation of the Mental Health Tribunal was challenged by the claimant by a claim for judicial review, which was rejected by Richards J (as he then was) in March 2003 (reported as R(P) v(1) Mersey Care NHS Trust,

(2) Dr Mulligan,

(3) Home Secretary

[2003] EWHC 994 (Admin)

[6]In 2007 the claimant's case was again considered by a Mental Health Tribunal. The report prepared for that Tribunal by Dr A C Wilson, the Consultant Forensic Psychiatrist who was then the claimant's responsible medical officer, recorded the following assessment of the claimant's condition at that time:

"[PP] is detained under the category of psychopathic disorder, as described in Part 1 of the Mental Health Act 1983. In clinical terms, he suffers from a personality disorder which is severe..."

Under the heading "Security Issues" the report states as follows:

"149. [PP] presents only minor challenges to the security regime of the high secure hospital and he is managed on Macaulay Ward without undue difficulty. In such an environment, he does not present a significant risk to others . . . 150. It is probable that, after a period of rehabilitation and careful preparation [PP's] clinical risk could be managed in a medium secure unit . . . [PP] is likely to require a significant period of further treatment in such a unit. At the present time, it is not possible to make any sensible comments about risk assessment and risk management in a community setting . . . "

[7]In March 2008, following a referral made by the team responsible for him at Ashworth Hospital, the claimant was assessed on behalf of the Barnsley Primary Care Trust -- which would be responsible for funding his placement in a medium security hospital -- by Dr Gibbon, a Consultant Forensic Psychologist at Arnold Lodge.

[8]The claimant was subsequently assessed by Dr Caroline Bradley, the Consultant Forensic Psychiatrist at Thornford Park. On 6 May 2008 Dr Bradley wrote to Dr Caroline Mulligan, a Consultant Forensic Psychiatrist and Associate Medical Director of Ashworth Hospital, who was the claimant's responsible clinician and the doctor with overall responsibility for his case. Dr Bradley said this:

"As you know, I assessed [PP] at Ashworth Hospital last week. I spoke with him for the best part of two hours and then had a discussion with his Primary Nurse. [PP's] background is of course well known to you and I am grateful for your exceptionally detailed and comprehensive case summary... It seems to have been established that [PP] suffers from a mixed personality disorder of severe degree and incorporating narcissistic, dissocial, histrionic and paranoid characteristics. His static risk is, in my opinion, high and likely to remain so. However, [PP] has not been violent within Ashworth Hospital as far as I can establish, and his Primary Nurse reported that on a day-to-day basis [PP] presents little or no management problem for the ward. In addition, [PP] now seems to be willing to engage in therapy whereas for many years this was something he declined to do. [PP] is now 70 years old and in conversation with me expressed his concerns that time is running out for him in terms of making progress towards a better quality of life. [PP] told me that if he really believed that he would never be released into the community, he would commit suicide. This risk will need to be monitored carefully during any phase of transition to a setting other than Ashworth hospital. I note that Dr Driscoll made similar observations in his Mental Health Review Tribunal report. I think that [PP] would be manageable day-to-day in the medium secure part of Thornford Park Hospital. The purpose of such a move would, in my opinion, need to be made explicit to [PP] before he moved: there should be no expectation of rehabilitation to the community. I think that [PP] will need to understand that while his day-to-day presentation does not perhaps merit a placement in high security, his risk to the public remains high and will need to be the focus of considerable therapeutic intervention within medium security. His full cooperation with treatment will be necessary if he is to have any realistic chance of progression beyond long-term medium security. I also think that it will be interesting to see how [PP] copes with conditions of medium security. He has in the past perhaps demonstrated a tendency to push boundaries and there are of course more opportunities to attempt such things in medium security than in high security. On the positive side, I have seen patients who find the different environment to be positively therapeutic, resulting in an overall reduction in their levels of arousal and a reduced tendency to try to subvert or dominate the systems in place around them. It would be interesting to see how [PP] reacts."

The letter goes on to propose a care plan for the claimant should he move to Thornford Park medium secure unit. Dr Bradley then said this:

"I would propose a period of 12 months trial leave during which [PP] would be observed carefully for his ability to cope within the medium secure environment and to undergo a psychological assessment before starting psychological treatment. During that time [PP] needs to understand that it would not be part of my plan for him to have any community access. His ground leave would be escorted at all times. I should also like [PP] to agree to a written contract in terms of hospital staff scrutinising his correspondence (apart from that between him and his legal advisors et cetera). [PP] has an extensive acquaintance outside the hospital system and the routine monitoring of mail that takes place in conditions of high security clearly does not happen in medium security. I would want to make sure that [PP's] transfer to medium security had not destabilised him and one way of monitoring this is to check that his correspondence is appropriate. Hopefully, once confidence in [PP's] placement has been established this type of monitoring would no longer be thought necessary. In short, [PP] is a complex case whose day-to-day presentation renders him manageable within conditions of medium security, while his risk to the general public remains high. His period of trial leave would be for the purpose of establishing whether his manageability on a day-to-day basis continues within conditions of lesser security and whether there is a commitment on his part to engage in the type of treatment that I believe he needs. I have copied this letter to the Ministry of Justice as the treatment plan proposal for a period of trial leave in medium security at Thornford Park Hospital."

A copy of that letter was duly sent to Ms Sarah Conroy, a case worker at the Ministry of Justice.

[9]On 1 July 2008 Dr Mulligan wrote to Ms Rita Thomas, the Forensic Case Manager of Barnsley PCT, saying this:

"I am writing to confirm that it is the opinion of myself and the patient care team that [PP] presents a low risk of absconsion and that we are of the opinion that Dr Bradley and the team at Thornford Park will manage that risk. Given our conversation that if we were able to offer these reassurances the Commissioners at Barnsley Primary Care Trust would be willing to commission Thornford Park for [PP], I have gone ahead with the referral to the Ministry of Justice and informed [PP] and his solicitor."

[10]On 10 July 2008 the claimant was assessed by a nursing team from Thornford Park Hospital. The recommendation made in the assessment document was "Medium Security". In the section headed "Current Care Plan" it states:

" . . . Requires ongoing secure care, boundary setting and supervision at all times. Continues to prevent risk to women."; in the section headed "

Any Current Unmet Needs?":

"No longer requires high security due to ageing process and physical condition."; under "

Any Additional Information":

"Appears totally unrepentant and continues to exhibit risk factors -- it is likely that further offences would occur if patient were in the community, though behaves well in a care situation."; in the section headed "

Reason for Referral and Goals of Admission":

"No longer requires high security. Admission aims -- to continue to provide secure care and offer treatment opportunities."; in the section headed "

Patient's Current Mental State":

"Stable, however, [PP] does not appear to have reformed in any way. While in secure care he behaves well though continues to present a danger to women as he has not accepted treatment."; in the section headed "

From Discussion with Current Nursing/Clinical Team":

"[PP] no longer requires high security in part due to age and physical health -- however he does require close monitoring and ongoing secure care."; and as to the "

Assessment of Risk to Self and Others", under the sub-heading "Impulsivity of anger control":

"No problem noted in secure setting, although if unsupervised appears impulsive and violent."

[11]On the page of the document headed "Recommendations for Assessors" two questions were asked, namely:

"Is this person suitable for admission to Priory Secure Service Hospital?" and "

Is this person suitable for other placements within Priory Secure Services?" The answer given to both questions was "Yes", to which was added:

"Any medium secure setting away from the Manchester area."

[12]On 14 July 2008 Dr Mulligan applied to the Secretary of State under section 17 of the 1983 Act for the grant of a period of trial leave for the claimant from Ashworth Hospital to Thornford Park. The application is set out in the form of responses to a series of questions and requests, 13 in all:

"Application for trial leave or full transfer to another hospital (to be completed by the current RMO ...) ... Trial leave or full transfer sought?: Trial leave. If trial leave is sought detail of proposed length (in months) of the trial: 12 months. 1. Reason for requesting a trial leave or full transfer: It is thought that [PP] is suitable for transfer to lesser security. In a report for the Mental Health Review Tribunal dated 24th August 2007, Dr Wilson, Responsible Medical Officer, noted that [PP] presents only minor challenges to the security regime of the high secure hospital and is managed on Macaulay Ward without undue difficulty. It was thought that rehabilitation needed to be in a specialised medium secure unit, although this had not been possible owing to his outstanding treatment needs, his limited insight and his unrealistic expectations about his future care and treatment. It was thought that he could be managed in an unit specialising in the treatment of people with a personality disorder and that he would require a significant period of further treatment in such an unit. [PP] was assessed by a number of different clinicians for the Tribunal. He had engaged in sessions with Dr R Worthington, Forensic Psychologist, to address issues raised in the report by Dr Logan in 2006. He had continued to engage in rehabilitation and had regular sessions with Mr J Cooper, Internal Care Co-Ordinator. Dr Mulligan took over his care in early 2008. At this stage he appeared willing to engage in psychological therapy and to work with the team in order to make progress. A decision was made to seek an opinion from the clinical team from his home area medium secure unit. He was referred to Arnold Lodge. He was assessed by Dr Gibbon, supervised by Professor Duggan who concluded that [PP] did not require high secure services and could be managed within lesser security, however, he did not think that transfer to Arnold Lodge was appropriate, given [PP's] previous admission and ongoing negative attitudes towards the unit and his need for long term care which would not be available within the specialised personality disorder service at Arnold Lodge. It was thought that a referral to an independent sector provider would be appropriate. [PP] was assessed by Dr Caroline Bradley, Consultant Forensic Psychiatrist from Thornford Park in April 2008. A copy of her report was sent to Ms Sarah Conroy, Case Worker, as the treatment plan proposal for a period of trial leave within Thornford Park. She concludes that [PP] would be manageable within medium security, although the purpose should be made explicit, ie, there should be no expectation of rehabilitation into the community as his risk to the public remains high and will need to be the focus of considerable therapeutic intervention. She outlines the proposed care plan and some of the risk management strategies that would be put in place. She notes that the purpose of the trial leave would be to establish whether his manageability on a day-to-day basis continues within conditions of lesser security and whether there is a commitment on his part to engage in the type of treatment that she believes he needs. Confirmation of funding and the availability of a bed has been received. 2. Are there any victim issues to be considered? . . . There are no specific victim issues to be considered if the move is agreed . . . 3. Detail any incidents of physical or verbal aggression that have occurred since admission. What improvements has the patient made in this area? Since 2000 [PP] has been involved in two incidents. The last was in 2005 when he was angry and verbally threatening in a discussion with nurses about a new ward policy. Prior to this, the last incident was in 2002. This was a further incident of verbal abuse towards nurses. Whilst in high secure services, [PP] has rarely engaged in physical aggression, although he has at times issued threats. [PP] has become more able to manage his anger and frustration. The risk of verbal or physical aggression is considered to be low within a secure setting. 4. Detail any sexually inappropriate behaviour the patient has exhibited since admission. What improvements has the patient made in this area? [PP] has not engaged in sexually inappropriate behaviour within high secure services. At times his relationships with female members of staff have been commented upon as he can be over familiar and make sexualised comments. 5. Detail the patient's leave history and any incidents of note, including a report on the patient's most recent leave if entitled: [PP] has not had any leaves of absence from Ashworth Hospital other than for medical reasons in recent years. No clinical or security concerns have been raised in regard to any of the medical leaves of absence. 6. Detail any escapes or absconds including dates, activity whilst awol and what reasons the patient gave subsequently for their behaviour . . . [PP] has no history of absconding, escaping or attempting to abscond. ... 10. What do you feel the proposed trial leave or full transfer placement can offer the patient? The proposed trial leave will give [PP] an opportunity to engage in an ongoing process of treatment and rehabilitation. Thornford Park has been chosen owing to the experience of the clinical team in managing men with a personality disorder and also physical health problems. It provides therapy and rehabilitation for men with personality disorders and it has a level of structure and support that would benefit [PP]. The assessment by Dr Bradley outlines the benefit in a period of assessment within a lesser secure unit. [PP] now appears motivated to engage in therapy and to co-operate with the clinical team. His personality traits, particularly the narcissism, mean that it is difficult for him to engage in therapy after his insistence for many years that he no longer requires any further interventions. Trial leave will give him an opportunity to engage fully with new therapists and clinicians. It would establish whether he would continue to be manageable within conditions of lesser security and confirm his commitment to further therapy. 11. Why are you confident the patient can be safely managed in a less secure environment? [PP] has presented with few clinical or security concerns while he has been in high secure services. He is managed with minimal intervention on a moderate to low dependency ward. His main risks are within the community. The team are confident that any risks can be managed in a less secure environment, provided risk management strategies remain in place. The assessment by Dr Bradley shows a good understanding of the major risk issues and outlines how these would be managed. It is acknowledged that he presents a complex case and that the risk to the general public remains high. He has developed some skills in managing his ability to cope with stress and it is thought that he will continue to use these skills following transfer. The care team are confident that the clinical team at Thornford Park can help him manage his risk behaviours safely . . . 13. Please summarise the patient's general progress and anything you would like to add. [PP] is not thought to require detention within high security. He is settled on a ward with a moderate amount of structure and which could be classified as being medium to low dependency. There have been no incidents of verbal or physical aggression for several years. The main concern is his risk to the general public and the risk of sexual aggression within the community remains high. However, the proposal is for a period of trial leave to assess his ongoing commitment to therapy and manageability within lesser security. There is no expectation of rehabilitation to the community and he is believed to require long term treatment and care within a secure setting. He has begun to recognise the need to engage in therapy and co-operate with the team. This has been reflected in his engagement with members of the team and participation in discussions around his care plans. In conclusion, it is thought that [PP] could be managed within a long term secure setting, providing the unit has the expertise to manage his complex problems. It is thought that Thornford Park would provide the treatment that he requires and the clinical team, particularly Dr Bradley, appears to have a good understanding of the risk issues. He would have the support of the Resettlement Team during the trial leave period. There are clear guidelines as to the purpose of the trial leave and the therapy in which [PP] would need to engage if the leave is to be considered successful."

[13]On 8 September 2008 a Social Work Service Report was prepared by the claimant's Senior Forensic Social Worker at Ashworth Hospital, Mr Appleton. This stated that the claimant was:

" . . . having second thoughts about the wisdom of this transfer, as he believes that the opportunities for rehabilitation will be few and he is wondering what benefit there will be to him of being detained in another hospital as opposed to Ashworth Hospital. It appears that he understands that the plan would be for a long term placement in Thornford Park, but [PP] does not accept that he requires continued detention."

This report stated in its conclusion that the Patient Care Team were "currently supportive of the proposal to transfer [PP] to a medium secure unit where it is envisaged that he would have a long term placement".

[14]On 18 September 2008 a Medical CPA report was prepared by Dr Naylor, an Associate Specialist at Ashworth Hospital. That report, under the heading "Risk to Others", states:

"[PP] continues to present a risk of sexual assault against females. This risk is highest in the community. A detailed risk assessment (Dr Logan 3.8.06) is available in his clinical notes. This outlines the potential risk scenarios, triggers for violence and risk indicators as well as detailed risk management plans. It also outlines the work considered necessary for him to address the risk. ...[A] form has also been completed and is available in his notes (Dr C Mulligan 1.5.08). The high risk patient protocol was completed in October 2007."

[15]On 15 October 2008 a Nursing Assessment was prepared by Mr Cooper for the forthcoming Care Programme Approach ("CPA") meeting. It states:

"Since his acceptance by Thornford Park for transfer, [PP] who was initially quite pleased with the situation has become somewhat ambivalent regarding proposed move, he has been informed that all his mail will be subject to being checked and there are no plans for him to have any community access or any indication that any future discharge plans are to be considered. He sees this at this time as merely moving from 'one lock up to another lock up', and he will not have the same level of facilities as at Ashworth, he has regular correspondence with an ex Ashworth patient who is already a resident at Thornford Park, and [PP] has indicated that he is less than impressed with information that he has received regarding the hospital."

[16]On 28 October 2008 the CPA meeting was held at Ashworth Hospital. The claimant's case was discussed in depth. Nine professionals of various disciplines from Ashworth Hospital, Thornford Park and Barnsley PCT were present. Those who attended included Dr Mulligan, Mr Appleton, Mr Cooper, Dr Bradley, and Ms Thomas. The meeting was also attended by Mr Andrew Sansom, a Senior Case Worker in the Mental Health Unit at the Ministry of Justice. The claimant himself was present for part of the meeting.

[17]The report of the CPA meeting recorded the comments made and questions asked by those who attended it. I shall refer to the salient passages of that report in summarising the submissions made by counsel. The Secretary of State's decision On 17 November 2008 Dr Mulligan's application for the claimant was refused by the Secretary of State. The decision was notified to the claimant's solicitors on 9 December 2008. The decision letter was addressed to Dr Mulligan at Ashworth Hospital and signed by Mr Sansom. It states:

"Thank you for your application for the above named patient to undertake a period of trial leave to Thornford Park Hospital. I note your advice that [PP] no longer requires the physical security provided in a high security hospital and could be managed safely in medium secure conditions. In considering the proposal I have reviewed the circumstances of the previous attempt to rehabilitate [PP] under conditions of medium security. You will be aware that leave on that occasion failed after the relationship between the care team and the patient broke down and there were reports of inappropriate behaviour by [PP], a situation which led to his urgent return to high security. I note from the record of a recent care plan assessment meeting that [PP] is ambivalent to some of the conditions of the trial leave proposed by the Thornford Park care team. This was evident when I attended a subsequent meeting when where [PP] indicated that he did not agree with all the conditions proposed by Dr Bradley, who would be his trial leave Responsible Clinician at Thornford Park. I also note that [PP's] attitude towards the index offence, as well as the previous offences, remains relatively unchanged and that his insight into his condition remains limited. [PP's] offences were of the most serious kind. The assessment that he no longer requires physical containment in high security does not reassure the Secretary of State that he could be managed safely under less secure conditions if he will not willingly accept and commit himself to comply with a less intensive regime. In light of these concerns regarding the management of [PP] in medium secure conditions the Secretary of State considers that he is best placed in conditions of high security and does not give authority for trial leave. In reaching this decision careful consideration has been given to [PP's] continuing need for rehabilitation and treatment. No specific treatment option was offered to him at Thornford Park which is not available at Ashworth Hospital. Accordingly, the Secretary of State does not believe that [PP] is personally disadvantaged by his decision, which is taken in light of his responsibility to protect the public from further harm. He has in mind the health and safety of patients and staff at Thornford Park. I am sorry that we could not provide you with a more positive response at this stage."

[18]The claimant's claim for judicial review challenges that decision and seeks an order to quash it. The relevant statutory provisions

[19]I can describe the relevant statutory scheme succinctly by adopting the summary in paragraph 7 by Richards J (as he then was) in R(P):

" . . . There is a power exercisable by the RMO under section 17 of the 1983 Act to grant a patient leave of absence from the hospital where he is detained. There is a power under section 19 as to the transfer of patients. In the case of a restricted patient the exercise of powers under sections 17 and 19 requires the consent of the Secretary of State . . . "

In paragraphs 25, 26 and 27 of his judgment in R(P) Richards J said this:

"25. In my judgment the central question in this case is whether the risk posed by the claimant is sufficiently low to make it appropriate for him to be accommodated in medium security rather than high security. If it is, then plainly there is a case for transfer; if it is not, his continued detention in conditions of high security is plainly a justifiable interference in his Article 8 rights. 26. Who is to decide that question of risk? That is really the stark issue raised by Mr Bowen's submissions. Is it the persons upon whom the statutory powers have been vested by Parliament? Is it the Tribunal or the court? In my judgment the answer is clear. The decision must lie with those in whom Parliament has vested the statutory powers and who are thereby made responsible for forming the necessary judgments upon which the exercise of the statutory powers is necessarily based. That applies in particular to the Secretary of State who has ultimate responsibility under all the relevant statutory provisions, either as the person with power to direct or as the person whose consent is a precondition to the exercise of the powers by others. The statutory scheme is clear. It is not for the court to substitute its judgment for the statutory decision-maker. 27. The process contemplated in Wilkinson in hearing expert evidence, including cross-examination, which is the process that the claimant invites the court to adopt in the present case, seems to me to relate to a very different context. This is a situation where the court can and should acknowledge that the statutory responsibility has been vested in others. It should afford to the decision-maker a margin of discretion, though of course it will look carefully at the basis of the decision and at the judgment reached and will examine in particular whether all relevant evidence has been taken into account and, where there has been a recommendation, albeit an extra-statutory recommendation by the Tribunal, whether that recommendation has been properly taken into account. The court's role is, however, the secondary one of determining whether the decision-making process has been a proper one and whether the judgment reached is one reasonably open on the evidence."

[20]For the claimant Mr Roger Pezzani submitted that the present case, however, was of a kind in which the court must apply anxious scrutiny to the decision of the Secretary of State rather than merely deploying conventional Wednesbury principles. This was a case in which a more intrusive approach was called for.

Article 8 of the Convention

was engaged. The court must consider the question of proportionality. However, Mr Pezzani also submitted that, on the facts, this was not a case where the result should be different if a less intrusive approach were adopted. Not only was this not a manifestly reasonable decision; it was manifestly an unreasonable one.

[21]Section 41 of the 1983 Act empowers the Crown Court, after it has made a hospital order under section 37, to make a further order -- a "restriction order" -- restricting the patient's discharge, transfer or leave of absence from hospital for an unlimited period without the consent of the Secretary of State for Justice. A restriction order may only be made where it is necessary to protect the public from serious harm. The nature of such an order was considered by the Court of Appeal in the case of R v Birch

(1989) 11 Cr.App.R(S) 202

. Subsection 4(3)(c)(i) of section 41 stipulates, in effect, that a patient in respect of whom a restriction order is in force, may only obtain leave of absence under section 17 of the Act with the consent of the Secretary of State.

[22]As to the nature of the Secretary of State's interest under section 41(3)(c)(i) when the patient would not come into contact with the public at large if trial leave were to be granted, the decision of the Privy Council in Anderson, Reid and Doherty v Scottish Ministers and Advocate General for Scotland [2001] MHLR 192 makes the position clear. In paragraph 37 of his speech, Lord Hope said this:

"The word 'public' and the phrase 'in order to protect the public from serious harm' in each of the various amendments included in section 1 of the [Mental Health (Public Safety and Appeals) (Scotland) Act 1999] is capable of meaning either the public in general or a section of the public, as the context requires. In Doherty's case there is no question of his coming into contact with the public in general as he would be remitted to prison in the event of his discharge from hospital. But the persons with whom he would be liable to come into contact in a prison may be regarded as a section of the public. They include prison officers, other inmates and a variety of persons who visit prisons for religious, educational, social work or other purposes. Read in this way, the effect of the amendments introduced by section 1 of the 1999 Act is to require the sheriff or the Scottish Ministers, as the case may be, to be satisfied in Doherty's case that it is necessary for him to be detained in a hospital to protect that section of the public from serious harm . . . "

[23]Section 17 of the 1983 Act, under the heading "Leave of absence from hospital", provides:

"(1) The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons . . . "

It is to be noted that the concept of "trial leave" is not defined in section 17 or anywhere else in the 1973 Act. However, Mr Pezzani submitted that the application made by Dr Mulligan in the present case was, in effect, an application for conditional leave, a concept plainly embraced in subsection (1) of section 17.

[24]Under section 17 and by virtue of section 41, the Secretary of State retains a discretion in a case such as this. Mr Pezzani submitted that that discretion must be exercised in accordance with the basic principles of public law, and in particular with the principles of rationality, fairness and proportionality. He went on to submit that, although the Secretary of State retains the discretion to refuse an application made to him under section 17, the whole scheme of the Act is to the effect that decisions made under its provisions are made in the light of, and with proper deference to, the clinical judgment.

[25]Mr Pezzani submitted that the provisions contained in section 37 of the 1983 Act, by which the court has power to order a convicted person's admission to hospital, demonstrate that the purpose of detention under the Act is therapeutic. He emphasized the explicit reference in subsection (2)(a)(i) of section 37 to the need for medical treatment and for the court making a hospital order under section 37 to consider whether appropriate treatment is available for the person in respect of whom such an order is made. These provisions, said Mr Pezzani, imply what he described as the "therapeutic imperative". The same principle, submitted Mr Pezzani, is also reflected in section 72 of the 1983 Act, which empowers Mental Health Review Tribunals to discharge patients from hospital, guardianship or supervised community treatment and directs tribunals to discharge such patients if specified criteria are satisfied. The Code of Practice

[26]Under section 118 of the 1983 Act the Government has published a code of practice, the "Code of Practice Mental Health Act 1983". The version of the code current at the time of the Secretary of State's decision in the present case was published in May 2008.

[27]In Chapter 1 of the code, the "Statement of Guiding Principles", paragraph 1.2, under the heading "Guiding principles", states the "Purpose principle":

"Decisions under the Act must be taken with a view to minimising the undesirable effects of mental disorder by maximising the safety and wellbeing (mental and physical) of patients, promoting their recovery, and protecting other people from harm. In paragraph 1.3 the "

Least restriction principle" is stated:

"People taking action without a patient's consent must attempt to keep to a minimum the restrictions they impose on a person's liberty, having regard to the purpose for which the restrictions are imposed."

[28]Mr Pezzani submitted that these provisions of the new version of the code had been prefigured in its predecessor, paragraph 1.1 of that document having referred to the principle that people to whom the 1983 Act applies should "be given any necessary treatment or care in the least controlled and segregated facilities compatible with ensuring their own health or safety or the safety of other people". In this way, said Mr Pezzani, the principle of proportionality has been built into the whole process of decision-making in cases such as the present.

[29]In Chapter 21 of the code, which provides guidance specifically on leave of absence for detained persons under section 17 of the 1983 Act, paragraphs 21.6 and 21.8 state:

"21.6. Only the patient's responsible clinician can grant leave of absence to a patient detained under the Act. Responsible clinicians cannot delegate the decision to grant leave of absence to anyone else . . . 21.8. Leave of absence can be an important part of a detained patient's care plan, but can also be a time of risk. When considering and planning leave of absence, responsible clinicians should: • consider the potential benefits and any risks to the patient’s health and safety of granting or refusing leave; • consider the potential benefits of granting leave for facilitating the patient’s recovery; • balance these benefits against any risks that the leave may pose in terms of the protection of other people (either generally or particular people); • consider any conditions which should be attached to the leave, eg, requiring the patient not to visit particular places or persons; ... • take account of the patient's wishes, and those of carers, friends and others who may be involved in any planned leave of absence; ... "

The submissions made for the claimant Approach

[30]Mr Pezzani submitted that in exercising his discretion in the present case, the Secretary of State should have had proper regard to the relevant principles in the Code of Practice, in particular the principle of "least restriction", and also the principle of proportionality now built into the scheme of the 1983 Act. The purpose of detention under the 1983 Act is underpinned by the "therapeutic imperative", the principle that decisions are to be soundly based on clinical judgments. Since the panel that previously advised the Secretary of State on restricted patients was disbanded in 2003, and in the light of the court's decision in ex parte Harry, the Secretary of State has adopted the approach of considering the recommendations made by Mental Health Tribunals. Thus, Mr Pezzani submitted, it was significant that in August 1999 and in July 2002, tribunals had recommended that the claimant should be granted trial leave in conditions of lower security. The scope of the application for leave in the present case

[31]Mr Pezzani stressed that the proposed leave that had been sought in this case would be for a trial period; and that it would be possible to return the claimant to high security conditions at any time. There would be no automatic entitlement to community leave. The claimant would stay locked up. The claimant's attitude to the proposal

[32]Although the claimant had expressed some ambivalence about the move to Thornford Park, Mr Pezzani submitted this had not been considered by the clinicians to be a bar to his being granted such leave. The claimant was adamant that he did not want to go instead to Rampton. Self-evidently, Mr Pezzani submitted, the claimant's enthusiasm for his being moved to Thornford Park was sufficient for him to have given instructions for the present claim to be made and pursued. Changes in circumstances

[33]The situation had now changed significantly, said Mr Pezzani, since 2002. Everybody responsible for the management and treatment of the claimant at Ashworth Hospital, and those who would be at Thornford Park, and the representatives of the NHS Trust, had agreed that the claimant should be given the trial leave he wanted. Thus there was now unanimity of relevant expert professional opinion. Mr Pezzani pointed to the series of multi-disciplinary assessments and meetings that had been held between March and October 2008. The consensus comprised "the full panoply of social and clinical expertise". Risk

[34]Because the proposal was for trial leave rather than a transfer, Dr Mulligan would remain the claimant's responsible clinician. The judgments she had expressed in the making of the application had been formed taking account of the opinion recorded by Dr Bradley in her letter of 6 May 2008 that the claimant's "static risk" was "high and likely to remain so".

[35]As was noted in part 3 of the application for trial leave, there had only been two incidents of verbal aggression since 2000 and Dr Mulligan's judgment was that the risk of verbal or physical aggression was low. Mr Pezzani emphasized the judgment expressed in part 10 of the application, that the claimant's trial leave "would establish whether he would continue to be manageable within conditions of lesser security and confirm his commitment to further therapy". This was, after all, a trial, and the possibility that it would not be successful had clearly been acknowledged. As was noted in part 11 of the application, the claimant's care team was "confident that the clinical team at Thornford Park can help manage his risk behaviours safely". The opinion was expressed in part 13 of the application that he "could be managed within a long term secure setting, providing the unit has the expertise to manage his complex problems".

[36]Similarly, in the "Nursing Assessment Proforma" of July 2008 a clear distinction had been drawn between the risk posed by the claimant to the public at large and the risk he posed when in secure conditions. Mr Pezzani laid particular stress on the positive responses given to the two questions raised under the heading "Recommendations for Assessors". Those two questions brought a deliberate focus on to the suitability of the claimant's proposed placement in medium security conditions at Thornford Park. This was the considered assessment of people who would be, as Mr Pezzani put it, in the "front line" if the claimant was moved to Thornford Park. If they had believed the claimant would pose a risk to them or to other patients for whom they are responsible they would have said so. The CPA meeting of 28 October 2008

[37]Mr Pezzani attached great significance to what had been said and discussed at the CPA meeting on 28 October 2008. The meeting was held deliberately "to facilitate discussions with the Ministry of Justice in order to obtain answers to relevant questions regarding the application for permission for [the claimant] to have a period of trial leave at Thornford Park". Mr Pezzani concentrated on the questions asked by Mr Sansom. This was an opportunity for him, as the Secretary of State's representative at the meeting, to inform himself on the merits of the application for trial leave, and the best possible opportunity to do so because everyone concerned in the claimant's case was present. The matters raised by Mr Sansom were these: 1. whether there was "any contact with the victim's family and if there was likely to be any media interest as a consequences of the move"; 2. whether, if the claimant's "move to medium security were to attract media attention what would be the impact on the victim's family and how would the claimant react"; 3. the outcome of the last consideration of the claimant's case by a Mental Health Tribunal; 4. the fact that in the 2008 ASR it had been recorded that the claimant was not on any anti-psychotic medication and that previous reports had raised the possibility of the claimant suffering from paranoia; 5. the fact that Dr Bradley had considered appropriate conditions which the claimant must accept if he was to have a period of trial leave at Thornford Park; 6. how the claimant would respond to other people around him having community leave; 7. how the claimant would respond to his correspondence being checked and how this could be legally enforced; 8. generally, what advantage there would be in a medium security regime with the restrictions to which the claimant would be subject, and whether he actually needed high security; 9. why, after the claimant had spent more than 30 years in high security conditions and there not having been a great deal of change, medium security was being recommended; 10. what would be the situation in, say, five years time; 11. what were the options for the claimant's treatment; 12. the use of seclusion at Thornford Park; and 13. the likely timing of a bed becoming available at Thornford Park.

[38]Mr Pezzani highlighted the answers given by Dr Mulligan and Dr Bradley on the ninth of those 13 points:

"Dr Mulligan said that like all patients [PP] should be in the least level of security appropriate to his needs. It is in recent times that there has been the development of services for people with PD and the expertise of these services has expanded to meet patient needs. The reasons for the referral now are both that the claimant has made some changes and that suitable services have developed. Dr Bradley pointed out that the application was for trial leave."

The three main propositions (1) Mr Sansom's failure to ask the right questions at the CPA meeting

[39]Mr Pezzani submitted that the apparently crucial consideration in the Secretary of State's decision letter of 17 November 2008 was his ostensible concern with the protection of the public from further harm and specifically the protection of "the health and safety of patients and staff at Thornford Park", was not raised by Mr Sansom at the CPA meeting. Mr Sansom had asked many questions, but this was not one of them. If this had been the true or most significant concern harboured by the Secretary of State it ought to have been squarely raised at the meeting so it could be answered. It was unfair for the Secretary of State to have sought advice from professionals but not to have asked them about a matter on which they were best placed to respond. This could be described as "insufficient enquiry" on the part of the Secretary of State. It was the duty of the Secretary of State to call his own attention to all relevant considerations. A critical issue for him was whether such risk as there was, if any, to patients and staff at Thornford Park was manageable. The Secretary of State had failed to get to grips with this issue. The questions asked on his behalf did not allow him to have a full enough picture to enable him to make a fair and reasonable decision. (2) The Secretary of State's failure to heed the information he had been given

[40]Mr Pezzani submitted, secondly, that the Secretary of State's decision ignored the answers to the questions he did ask. It was clear that the situation had changed materially since 1996, when the claimant's previous period in medium security conditions had failed, and that the lessons of that episode had been learnt and applied. Not only had the claimant changed; there had been other changes too. Services for people with personality disorders had developed. Thornford Park was able to offer these services. If the trial leave did not work well, an immediate return of the claimant to high security conditions would be possible. The thrust of the Secretary of State's decision, concentrating as it did on the claimant's ambivalence towards the proposed move and the recurrent theme of likely failure, had gone entirely unbalanced by any recognition of those new positive factors letter. Rather, an equation had been drawn between the failure of 10 years ago and the prospect of failure this time too.

[41]Mr Pezzani stressed that it was a task of the responsible clinician, when seeking trial leave for a patient, to have regard to the whole question of risk. This had been done by Dr Mulligan in the present case.

[42]Mr Pezzani submitted that deference ought to have been due to the expert judgments of those with particular knowledge of the claimant. Seeking to bolster this submission he referred to the judgment of Lightman J in R v Secretary of State for the Home Department ex parte Harry

[1998] 1 WLR 1737

, page 1746 B to D:

"It is the Secretary of State (and not the Tribunal) who is by statute entrusted with the task of deciding whether to give consent and he cannot have deprived himself of access to further information if he considers this to be required . . . If the finding by the Tribunal of the applicant's improvement did not fully satisfy him, the Secretary of State was not only free, but bound, to seek further advice and further information."; and at page 1746 H to 1747 D: "

In short, as it seems to me, the scheme of the Act of 1983 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 those 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 Tribunal leaves him in doubt, he is not only entitled but bound to look further afield for guidance: the finding and recommendation of the Tribunal 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."

[43]Mr Pezzani also referred to the judgment of Simon Brown LJ (as he then was) in the case of R (Wilkinson) v Broadmoor Special Hospital Authority and Others

[2001] EWCA Civ 1545

. In those cases, submitted Mr Pezzani, one could see a recognition of the court's natural tendency to defer to the opinion of medical experts, and this was analogous to the Secretary of State's obligations of reasonableness and fairness in exercising his discretion under sections 17 and 41 of the 1983 Act. (3) Error of fact

[44]Thirdly, Mr Pezzani submitted, the Secretary of State made a material error of fact in misunderstanding the potential therapeutic benefits the claimant would have available to him at Thornford Park. In the penultimate paragraph of his decision letter, the Secretary of State had said that the claimant would not be "personally disadvantaged" by the decision to deny him trial leave because no specific treatment opportunity had been offered to him at Thornford Park which was not available at Ashworth Hospital. This was not correct. Although Dr Bradley had indicated that the claimant would not initially be given the opportunity to begin any process of rehabilitation in the community, there was at least the possibility of the claimant receiving treatment at Thornford Park which could not be provided in a high security environment. This misapprehension had infected the Secretary of State's decision. He could not now resile from its influence on the decision he had made. The submissions made for the Secretary of State Approach

[45]For the Secretary of State Ms Gemma White submitted that the role of the Secretary of State in a case of this kind must be clearly understood. She referred to the decision of Lightman J in Harry. She pointed to the observations made by Lightman J about the scope and nature of the relevant statutory procedures:

"This application raises important questions as to the procedures to be followed by the Secretary of State in the exercise of his statutory jurisdiction under the Mental Health Act 1983. An order (which I shall refer to as a restriction order) may be made in respect of a mentally disordered patient convicted of a serious offence which places special restrictions upon him because this is necessary to protect the public from serious harm . . . So long as the protection of the public requires the restriction order to remain in force, the consent of the Secretary of State is required before two steps can be taken towards the discharge of the restriction order and the return of the restricted patient to the community, two steps which can be taken without his consent in case of patients not subject to such a restriction order ('unrestricted patients'). These steps are (pursuant to section 17 of the Act of 1983) the grant of leave to be absent from the hospital and (pursuant to section 19 of the Act of 1983) transfer to a less secure hospital. What is at issue on this application is whether in exercising the power to give or to withhold consent to either of these steps being taken the Secretary of State is free to disregard a recommendation made to him by a Mental Health Review Tribunal . . . "

[46]The main issue in the present case, said Ms White, was essentially the same: whether the Secretary of State was free to depart from the recommendation made to him by the clinical experts responsible for making that recommendation.

[47]Ms White drew attention to what Lightman J had said about the scheme of the 1983 Act (on page 1740 H to page 1741 A):

"The Act on 1983 superimposes on the statutory scheme applicable in cases of unrestricted patients specific additional provisions in respect of restricted patients. The regime so created is one in which the Secretary of State has a special and continuing responsibility for restricted patients so long as the restriction order remains in force."

[48]Ms White said it was not right to suggest that the Secretary of State ought to have transferred his responsibilities under the 1983 Act to the clinical professionals simply because they all agreed. That would have been an abdication by the Secretary of State of his statutory role. Ms White pointed to what Lightman J had said about the Secretary of State's discretion (at page 1746 F to H):

"Even if I thought that the Secretary of State was bound to accept the decision of the Tribunal as to the applicant's improvement, though the existence of such an improvement is highly material to the decision whether to grant consent, it would not be decisive. The continuance in force of the restriction order signifies that there continues to be some risk of serious harm to the patient or others requiring its continuance in force, and the Secretary of State must bear this risk in the forefront of his mind when considering an application for consent . . . [T]he Secretary of State is entrusted by Parliament with the task of deciding whether to give consent and he cannot abdicate this responsibility or transfer the responsibility to the Tribunal. It is open to him to decide (with or without the benefit of the advice of the Board) that the improvement is not such as justifies the creation of the risk to the public which the grant of leave or transfer to a less secure hospital may occasion."

[49]The role of the Secretary of State in a case such as this is not the same as that of the responsible clinician. It is very different indeed. For the Secretary of State, the principal responsibility must be to have regard to the protection of the public. This had been emphasized by the court in Harry. When a responsible clinician decided to apply for trial leave for his patient, it is the Secretary of State who has to exercise a judgment as to what course was appropriate in the interests of public protection. The application in the present case

[50]Ms White said the Secretary of State had not been in any doubt on the evidence of the claimant's improvement at Ashworth. Where he had departed from the clinical experts was on the question of risk. On that issue he disagreed with them. He found the risk to be too high to be able to agree to the proposed trial leave. About this he was clear. He was not bound to follow the recommendation made to him. Had he been, he would have had to accede to a request for trial leave in circumstances where he concluded there was, or might be, a significant risk. Nor was it incumbent on him to seek a second opinion.

[51]There was, submitted Ms White, a distinct parallel here with the issue that had arisen in R(P). In that case, Richards J had identified the central question as being whether the risk posed by the claimant was sufficiently low to make it appropriate for him to be accommodated in medium security. Had the answer to that question been in the affirmative, there would clearly have been a case for the transfer; otherwise, the continued detention of the claimant in conditions of high security would plainly be a justifiable interference with his Article 8 right.

(P) Risk

[52]Ms White accepted that the clinical team had been unanimously in favour of trial leave being granted. However, she submitted that in the case of someone who had been convicted of crimes of extreme violence, the Secretary of State was right to be cautious, responsible as he was for the protection of the public. Unquestionably the claimant's risk remained high. The circumstances of the claimant's offences were relevant, and important. Ms White referred to the Medical CPA report of 18 September 2008, in which the claimant was found still to present a risk of sexual assault on females, a risk said to be "highest in the community", and thus not merely present outside a secure setting. The "key question", as Ms White put it, was what risk the claimant would pose in medium security conditions at Thornford Park. To this question, the answer had been speculative. Dr Bradley, in her letter to Dr Mulligan of 6 May 2008, had said that the claimant's static risk was "high and likely to remain so"; that he had in the past "demonstrated a tendency to push boundaries"; and that there were "more opportunities to attempt such things in medium security than in high security". In his decision letter, the Secretary of State had made plain his concern for the "health and safety of patients and staff at Thornford Park". The nursing assessment said that the claimant continued "to present a danger to women as he has not accepted treatment". At Thornford Park, although the claimant would be unlikely to be able to mix with female patients, he would come into contact with female staff.

[53]Therefore, Ms White submitted, there was not enough for the Secretary of State to conclude that the risk posed by the claimant was sufficiently low to justify his being granted trial leave. The claimant's ambivalence

[54]Added to all this, said Ms White, was the fact that the claimant himself was in two minds about his being placed in medium security conditions. The nursing assessment noted that he was ambivalent about the move to Thornford Park, having been told that his mail would be checked, that no community access was planned for him and that there was no indication of any prospect of his being discharged. The Secretary of State's decision

[55]Ms White submitted that all of those matters had to be borne in mind, and were, when the Secretary of State was considering whether the claimant's proposed leave at Thornford Park was likely to work and whether he would engage with the treatment on which the security of his leave there would depend. This was a matter of judgment for the Secretary of State. He had exercised that judgment taking into account the material before him, and the expert views available to him. There was nothing unlawful in that. The alleged error of fact

[56]If -- which Ms White did not concede -- the Secretary of State had made an error of fact in finding that no specific treatment opportunities were available at Thornford Park which were not available at Ashworth, that error had not materially affected the Secretary of State's assessment of risk. But, said Ms White, there was no error. Dr Bradley had proposed a period of 12 months' trial leave, during which the claimant would be observed carefully for his ability to cope with the medium security environment and would undergo an assessment before starting psychological treatment. During that time, Dr Bradley did not intend the claimant to have any access to the community. The possibility of his receiving psychological treatment or being allowed access to the community at some time in the future was not inconsistent with the Secretary of State having found that no treatment opportunity had been offered to him at Thornford Park. A conjecture was not an offer. Conclusion

[57]In my judgment, the submissions made on behalf of the Secretary of State by Ms White are correct, and I accept them.

[58]I approach this case in the manner indicated by Richards J in R(P).

[59]In the first place, it is important to grasp the nature of the issue with which the Secretary of State was confronted in this case. Given the prospect, or at least the possibility, of some rehabilitative benefit for the claimant in having the opportunity to move -- on a trial basis -- to Thornford Park, the Secretary of State nevertheless had a statutory duty to establish for himself whether the risks to other people that might arise if the claimant were to be granted such leave would be acceptable. He plainly concluded that they would not. As the penultimate paragraph of his decision letter of 17 November 2008 makes plain, he concluded, in the light of "his responsibility to protect the public from further harm", that the interests of the "health and safety of patients and staff at Thornford Park" required a decision to withhold leave. It has not been suggested, nor could it be, that the patients and staff of Thornford Park are outside the scope of the protective duty cast upon the Secretary of State by sections 41 and 17 of the 1983 Act. They are not.

[60]Equally clearly, in my judgment, the Secretary of State's conclusion on risk flowed from the considerations set out in the third and fourth paragraphs of his decision letter. In those two paragraphs, the Secretary of State rejected the advice put forward by Dr Mulligan that the claimant could be managed safely in conditions of medium security. The Secretary of State was free to do this, provided he had cogent reasons for doing so. I believe he did.

[61]The factors which led the Secretary of State to reject Dr Mulligan's advice included the previous unsuccessful experience of the claimant having leave in an institution in which he was subject to medium security conditions, his ambivalence to some of the conditions of the trial leave which had been proposed, and his apparently "relatively unchanged" attitude towards his offences, with apparently limited insight into his condition. The Secretary of State was obviously not convinced that the claimant could be managed safely under conditions of medium security if he was not prepared to commit himself to the regime to which he would be subject when detained in such conditions. This was a matter of judgment for the Secretary of State. He did not reject any evidence of fact. What he did was to differ from the clinical team on a matter of opinion.

[62]I believe Ms White was right to place at the forefront of her submissions the proposition that the role of the Secretary of State was not the same as, or simply aligned with, that of the clinical professionals. I acknowledge the submissions made on behalf of the claimant by Mr Pezzani relating to the "therapeutic imperative", as he described it, but the Secretary of State was not bound by the professionals' opinion, even if that opinion was unequivocal and unanimous. Nor was the Secretary of State bound to seek a second clinical opinion to substantiate his own judgment on the question of risk. This is far from saying that the Secretary of State's discretion is unfettered. And it is not inconsistent with the statutory and judicial recognition of the importance of expert professional opinion relating to a decision of this kind. But it is to notice, as Parliament itself has noticed in conferring upon the Secretary of State under section 41(3)(c)(i) of the 1983 Act the discretion to withhold his consent to a section 17 application, that the Secretary of State has to exercise a judgment of his own.

[63]It may be, as Mr Pezzani suggested, that the Secretary of State should be slow to conclude that the expert opinion offered to him is wrong, particularly where that opinion is unanimous, diverse and carefully considered, as one can see that it was in this case. In the end, however, and subject to the scrutiny which the court will apply to the Secretary of State's decision when it entertains a claim for judicial review, the Secretary of State must be allowed to exercise the statutory discretion that is given to him.

[64]On the facts of the present case, I am unable to conclude that the discretion was exercised improperly in any of the respects contended for by Mr Pezzani, which essentially amount to allegations of unfairness, unreasonableness and the making of a decision offensive to the principle of proportionality.

[65]I reject the claim on all of those grounds, and I do so bearing in mind the submissions made by Mr Pezzani that this is a case apt for a more intrusive form of scrutiny than would apply in the ordinary context of a Wednesbury type of challenge. In any event it seems to me that, even if one did apply a more intense scrutiny in the present case, one would still be driven to the conclusion that the Secretary of State's decision was properly taken. I conclude that it was a lawful decision.

[66]I should deal specifically with the submission that the Secretary of State's decision was bad because his Senior Case Worker, Mr Sansom, omitted to ask questions at the CPA meeting specifically about the risk to which staff and patients at Thornford Park would be exposed and what measures would be put in place to remove or minimize such risks.

[67]I reject that concept. There were several indicia of risk in the materials prepared by those who assessed the claimant in the months preceding the Secretary of State's decision. I accept that a distinction was being drawn between risk in the notional circumstances of the claimant being at large in the community and risk while he remained in a secure setting. Nevertheless, in my view, the Secretary of State had information enough to enable him to judge for himself whether the risk involved in the proposed move of the claimant to a less secure environment could be countenanced. On this issue the clinical professionals took one view; the Secretary of State took another. In my judgment, it cannot be said that the view the Secretary of State adopted was irrational or otherwise unlawful in any of the respects suggested by Mr Pezzani.

[68]I do not accept the suggestion that it was incumbent on the Secretary of State to make explicit in his decision precisely how he thought the risk he was concerned about might manifest itself in the actions of the claimant -- rather than simply identifying the people who would be exposed to the risk -- or to amplify his view that the risk could not be safely managed, for example, by recalling the claimant to conditions of high security. It was enough, in my opinion, for the Secretary of State to express his anxiety about a possible repetition of the circumstances which had, on the previous occasion, made it necessary for the claimant to be returned to high security.

[69]Finally, I do not accept Mr Pezzani's submission that the decision is vitiated by an error of fact. There was, in my judgment, no error of fact. I do not believe that the Secretary of State misunderstood what Dr Bradley had said in her letter of 6 May 2008. No certain opportunity for treatment was being held out at Thornford Park to the claimant. It might have been in the future. But at the time when the Secretary of State made his decision he was not wrong to find that no specific treatment opportunity was definitely being offered to the claimant which was not available at Ashworth. In any event, I also accept Ms White's submission that, even if this was a misunderstanding of the true position on the part of the Secretary of State, it did not go to his crucial conclusions on the issue of risk. And, in my judgment, a different finding on this matter would have made no difference to the outcome of Dr Mulligan's application.

[70]Having now heard this claim fully argued, I am satisfied that permission for it to be brought before the court should be given. For the reasons I have given, however, the claim itself is not well-founded and must fail.

[71]MISS PATEL: My Lord, on the question of costs on behalf of the Secretary of State, I understand the claimant is legally aided. I think I must ask for a detailed assessment.

[72]THE DEPUTY JUDGE: Are you applying for costs, Miss Patel?

[73]MISS PATEL: No, I am not asking for our costs.

[74]THE DEPUTY JUDGE: Very well. Thank you.

[75]MR PEZZANI: My Lord, I am grateful. I have, first of all, my application for a detailed assessment of my publicly funded costs.

[76]THE DEPUTY JUDGE: I so order. There will be detailed assessment of the claimant's publicly funded costs.

[77]MR PEZZANI: Thank you, my Lord. I am considering whether to ask your Lordship to grant permission to appeal, but I am mindful that even though your Lordship is giving two separate judgments there are matters of principle that may cross the line between the two judgments. It may be that it would be more sensible for me to await your Lordship's judgment in the next case before making any application to appeal in relation to either. Of course I do not know whether I will need to make any application in relation to the next case.

[78]THE DEPUTY JUDGE: No. You will have to make an application to me in the first place if you wish to gain the permission of the Court of Appeal, as you know.

[79]MR PEZZANI: What I do not want to do is prefigure your Lordship's judgment in X by making submissions now on your Lordship's judgment in PP.

[80]THE DEPUTY JUDGE: No, but on the other hand, if you have an application to make then you will appreciate that I have given my judgment in the case of PP and I have made it clear why I have decided as I have. That does not depend on anything I am about to say in the judgment I give in the other matter.

[81]MR PEZZANI: I will ask your Lordship to grant me permission to appeal to the Court of Appeal. Before I do that, may I just make this short application, which is that there be an expedited transcript.

[82]THE DEPUTY JUDGE: I can understand why at this stage of term you seek that. I would be minded to order an expedited transcript, and I would be minded to give you a period of 14 days from the receipt of that transcript to make any application to the Court of Appeal.

[83]MR PEZZANI: My Lord, I am obliged. My Lord, if I may put my application in this way. There are general points relevant to CPR 52.66(b) which I would ask your Lordship to bear in mind in relation to the matters in this judgment. The first of those is this. The decision of the Secretary of State under consideration in this case has been made in many similar cases, and frequently, and will be made in many similar cases in the future.

[84]THE DEPUTY JUDGE: Let me understand your submissions, Mr Pezzani. Are you saying that the Secretary of State has made similar decisions in --

[85]MR PEZZANI: No, the exercise of the discretion itself is required to be made by the Secretary of State under section 41(3)(c)(i) frequently -- I do not have the exact figures -- and will continue to be.

[86]THE DEPUTY JUDGE: I will just say this to guide you at this stage, if I may. I make it clear, as I hope I did in the judgment, that I decided this case not breaking any new legal ground but applying the law, as I have understood it, to the facts. The consideration that I have provided and the reasons for my conclusions bear on the facts of the case. I have looked at this case on its own facts. I have not sought to create new jurisprudence.

[87]MR PEZZANI: My Lord, of course. I noted that your Lordship made that explicit in the judgment. Of course, when coming to a judgment on a set of facts one always, to some extent, makes statements of principle which potentially could be followed. The second general point that I would seek to make is that the exercise by the Secretary of State of his discretion in section 41, every time he is asked to do so, is highly important for two reasons: first, because it affects the path to liberty and treatment; and secondly, as your Lordship has acknowledged in the judgment, the protection of the public from harm from restricted patients, so the interests are extremely important.

[88]THE DEPUTY JUDGE: I understand.

[89]MR PEZZANI: The third point is this. The Secretary of State's power is now the subject of several first instance judgments but no Court of Appeal authority. There is, therefore, no binding authority on your Lordship or any other judge of this court at this stage.

[90]THE DEPUTY JUDGE: There are cases such as R(P).

[91]MR PEZZANI: There is P, there is Harry. I think it is just P and Harry, and now there is this and there will be one more today. But there is no higher authority. Given the importance of the subject matter and the number of likely exercises of the discretion in section 41, I would suggest there should be a binding authority. I will seek to argue from that that there are principles that require perhaps some elucidation, not only flowing from your Lordship's judgment but the previous judgments as well.

[92]THE DEPUTY JUDGE: Were there attempts to appeal in P and Harry?

[93]MR PEZZANI: The only one I know about is P. I understand that there was no application for permission. There was certainly no appeal.

[94]THE DEPUTY JUDGE: I see. I simply ask you in case you know.

[95]MR PEZZANI: I was not counsel in P, but I share a solicitor.

[96]THE DEPUTY JUDGE: If you do not know exactly what the position is, do not worry. But, that said, this is a matter that you might wish to parade before the Court of Appeal and say: we have these three judgments, there is no Court of Appeal decision. It is not something I find persuasive, having applied an approach which I have discerned to be consistent with Richards J in P and Lightman J in Harry and in a fact sensitive way in the present case. It does not persuade me that I ought to give you permission here.

[97]MR PEZZANI: I do not wish to try your patience at this time. I did intend to move on from the general points to just very shortly what I would argue in relation to the CPR and that is, as I think I perhaps adumbrated a moment ago, that your Lordship's judgment, albeit that it is fact sensitive, does contain statements of principle. First is that the Secretary of State is not bound by the opinions of a clinical team even if it is unanimous, nor is he bound to seek further evidence if it is unanimous. The second is a caveat to that, which is that the Secretary of State's discretion is nevertheless not unfettered.

[98]THE DEPUTY JUDGE: Those are not incompatible with each other.

[99]MR PEZZANI: I am not saying they are. I am saying they are both statements of principle. The difficulty is that, and it may be obtuseness on my part, that whilst your Lordship's judgment would seem to be broadly consistent with that of Richards J (as he then was) in P and Lightman J in Harry, it is not, I would suggest, as clear as it could be precisely how the Secretary of State's discretion is fettered.

[100]THE DEPUTY JUDGE: Right.

[101]MR PEZZANI: If the discretion is fettered but he is not obliged to follow unanimous evidence, and he is not obliged if there is unanimous evidence to seek some sort of clinical or expert advice to the contrary, then my question is simple: how is it fettered? Your Lordship may remember from the argument that that was not clear from the judgment of Lightman J in Harry. Nor, I would suggest, though of course with deference and respect, it is clear from your Lordship's judgment --

[102]THE DEPUTY JUDGE: I do not want to prolong this, Mr Pezzani. I want to treat your application with the respect due to it. You are not suggesting, are you, that the discretion of the Secretary of State is fettered by the opinion provided to him?

[103]MR PEZZANI: My Lord, I am suggesting what I suggested in argument which is where there is a unanimity of opinion one way, the only fair procedure for him to adopt, as I hope I made clear in argument, is at least to seek further advice on clinical matters.

[104]The other point I very briefly seek to make is your Lordship explicitly discounted any parallel between the interests of the responsible clinician and the interests of the Secretary of State in identifying the sole interest for the Secretary of State being risk to the public, but --

[105]THE DEPUTY JUDGE: To be fair, that was not exactly how I put it. Never mind. I understand the point you are seeking to make.

[106]MR PEZZANI: I say there are clear parallels. The latter was acknowledged in the decision letter.

[107]THE DEPUTY JUDGE: I understand your submission. I am not persuaded that I should give you permission to appeal. If you seek permission, you must seek it from the Court of Appeal. I do not believe, in the first place, that you have a realistic prospect of success, given my approach to this case, applying the jurisprudence to the facts. Secondly, I do not think there are wider questions here that demand a decision on my part to grant you permission. You must go to the Court of Appeal. I will order an expedited transcript. Subject to anything Miss Patel might say to dissuade me, I am minded to give you 14 days from the receipt of that transcript for any application to the Court of Appeal.

[108]MISS PATEL: I have nothing to say about that.

[109]MR PEZZANI: My Lord, there are one or two matters arising from the judgment. I do not know if it is convenient.

[110]THE DEPUTY JUDGE: Factual matters?

[111]MR PEZZANI: Yes, matters of terminology.

[112]THE DEPUTY JUDGE: If those are matters you are content I can correct in approving the transcript, I would be grateful for them. Thank you.

[113]MR PEZZANI: Your Lordship when going through the history. On 6th May 2008 Dr Bradley wrote to Dr Mulligan and your Lordship referred to her as the present RMO. That should be present RC.

[114]THE DEPUTY JUDGE: There was a change from RMO to RC. On 6 May Dr Mulligan was the RC.

[115]MR PEZZANI: From November last year.

[116]THE DEPUTY JUDGE: You are content that I can correct that in approving the transcript.

[117]MR PEZZANI: Your Lordship made various references to it being the claimant's application to the Secretary of State for trial leave. I would suggest that actually it is the RC's application.

[118]THE DEPUTY JUDGE: Strictly speaking, that is right. If I elided them I apologise. If you are content, I will go through the judgment, in approving the transcript, and adjust that reference in each case to the application having been made on behalf of the claimant by the RC, which is the correct way of putting it.

[119]MR PEZZANI: It is not really made on behalf of the claimant.

[120]THE DEPUTY JUDGE: Made by the RC. It is strictly by the RC for the claimant.

[121]MR PEZZANI: By the RC.

[122]THE DEPUTY JUDGE: So it is the RC's application. Well, if you are content I will make that correction in the approved transcript.

[123]MR PEZZANI: I am obliged. Your Lordship adopted Richards J's summary in paragraph 7 of P. There is a statement of the law as it is now, or summary of it. The law has changed only in so far as section 123 now is in slightly different language.

[124]THE DEPUTY JUDGE: Does that really matter, do you think? In fact, in the quotation from paragraph 7 it is not necessary to include that sentence actually. I am happy simply to delete, to avoid any confusion, that part of the quotation, because it was not germane to the point I was seeking to draw. I did refer to section 123 later in my judgment, I hope in an accurate way.

[125]MR PEZZANI: Your Lordship did. That is it.

[126]THE DEPUTY JUDGE: It is extremely helpful of you. You have obviously paid close attention to what I have said. It does help me.

PP, R (on the application of) v Secretary of State for Justice [2009] EWHC 2464 (Admin)

(P) Risk

Cited in 2 later judgments