X, R (on the application of) v Secretary of State for Justice [2009] EWHC 2465 (Admin)

[2009] EWHC 2465 (Admin)Case No CO/4417/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate 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 XClaimantv
Between
SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R Pezzani (instructed by Inyama & Co) appeared for ClaimantMs G White (and Ms 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 a decision of the Secretary of State, issued in a letter dated 3 February 2009, refusing to grant the claimant escorted community leave under section 17 of the Mental Health Act 1983 ("the 1983 Act"). The case comes before the court as an expedited rolled-up hearing of the application for permission and of the substantive claim in the event of permission being granted.[3]By an order of Blair J made with the parties' consent on 11 June 2009, the hearing did not proceed on that day and the case was adjourned to be heard together with the case of PP (CO/1564/2009), which was then part-heard before me, and in which issues relating to some parts of the statutory regime bearing on the present case fell to be considered. It happened that counsel in the other case were also instructed in this. The two cases having been brought together in this way, I was invited by the parties to issue a single judgment dealing with both. Although I was initially attracted by that idea, I have decided, in view of the distinct dissimilarities between the two cases, including some differences in the statutory matrix relating to each, to provide two separate judgments.[4]At the outset of the hearing an application was made on behalf of the claimant under CPR 39.2 for an order that the claimant be referred to throughout these proceedings as "X". That application was not opposed. Having considered it in the light of the considerations to which that part of the CPR refers, and for the reasons I then gave, I acceded to it.[5]The claim was brought outside the period of three months from the date of the relevant decision. At the beginning of the hearing I heard submissions from counsel on the claimant's application for an extension of time for the bringing of the claim. Having considered those submissions, I decided that there were, in the circumstances of this case, good reasons for extending time. The hearing proceeded on that basis. Factual background[6]The claimant is now 40 years old.[7]In May 1996 he was convicted on two counts of murder -- of a 18-year old man and of a 28-year old woman -- both of whom he stabbed to death. The victims were the claimant's former girlfriend and her boyfriend. The claimant was sentenced to life imprisonment for each offence.[8]In August 2000, having been diagnosed as suffering from personality disorder and obsessive compulsive disorder, the claimant was, at the Secretary of State's direction under section 47 of the 1983 Act, transferred from prison to Broadmoor Hospital. The Secretary of State also directed, under section 49 of the 1983 Act, that the claimant should be subject to the special restrictions set out in section 41. He is at present detained under the 1983 Act at a medium security hospital, having been transferred there from Broadmoor in August 2007. The transfer required and received the Secretary of State's consent under section 41(3)(c)(ii) of the 1983 Act.[9]As is stated in paragraph 3 of the claimant's detailed grounds, and this is not in dispute, the treatment and rehabilitation of the claimant have progressed reasonably well; the claimant has unescorted leave in the hospital grounds; and the clinical team responsible for the claimant at the medium security hospital now considers it appropriate for him to be granted limited escorted leave in the community, which requires the permission of the Secretary of State under sections 49(2) and 41(3)(c) of the 1983 Act. The application for escorted leave[10]On 23 July 2008 the claimant's responsible clinician, Dr M G Morris, submitted to the Secretary of State an application for the claimant to have escorted community leave. The proposal, as described in the "Proposed Leave Plan" presented by Dr Morris with the application, was that the claimant should have escorted leave in the local area, which was defined as being:
"Local towns and villages -- within an approximate 15-20 mile radius of the hospital . . . known in the hospital's policy as 'locality'."
The claimant would be escorted initially by two members of the staff of the hospital, and then "possibly after a month or so dropping to 1:1, then after several further months, assuming there are no concerns, dropping to [X] being escorted as part of a group of patients". The occasions on which the claimant would have leave would gradually be increased to two each week. The duration of leave on each occasion would be:
"Initially an hour or so in the community, with possible extension to several hours"
. The "therapeutic goals" of the leave would be:
"Exploration of issues related to risk assessment; community reintegration; assessment of reaction to this"
. The proposed arrangements for monitoring and reporting were also set out in the application.[11]The request for leave contained, under the heading "Relevant Information", the following:
"1. Evidence of verbal/physical aggression since admission (plus details and action taken). There has been no verbal or physical aggression since admission. At times [X] has been mildly irritable or assertive, but not causing concern. 2. History of self-harm. Since admission, there has been no history of self-harm. 3. Evidence of sexually inappropriate behaviour since admission (plus details and therapeutic intervention). There has been none. 4. Fantasies and assessed risk of acting these out. There is no evidence of violent or otherwise concerning fantasy . . . 5. History and current assessment of risk of absconding. This has been assessed as low. 6. Concerns about substance abuse on leave. [X] does not have a particularly significant substance use history. 7. Therapeutic interventions and evidence of change, including development of insight (into offending behaviour, victim(s) need for medication et cetera). In his previous hospital setting, [X] has engaged in significant amounts of therapeutic activity . . . The nature of [X's] attitude about his offending is complex, in that he clearly articulates victim empathy, accepts and recognises his difficulties, but remains preoccupied with other aspects of his case, such as the male victim's mother's publicity, and the Minister's decision not to allow him to step down for care . . . 8. Is patient's mental state stable (how long for?). [X's] mental state has been stable apparently for some years . . . 9. Key issues from risk assessment and mental disorder that the leave(s) will test. [X's] risk profile involves a single high impact incident in the unusual context (for him) of having engaged in a relationship, also in the context of a major change of life situation -- namely his admission to hospital following long term self isolation. Escorted leave into the community will not involve the recreation of those aspects of the constellation of issues that led to his index event -- other than that this will be significant for him in terms of his emergence from a care setting into the community (a component of the index event circumstances) albeit in a very controlled way. The main risk assessment aim would be to begin to assess [X's] reaction to re-integration in the community after a long period of isolation in care and custodial settings. 10. Assessment of risk to individual(s) or public (bearing in mind index offence). In the context of [X's] current stability; with a degree of supervision and in the context of his current presentation, the risks are probably low. 11. Special sensitivities about destination (eg, area of index offence, chance of meeting victim(s)/family, adverse publicity). [X's] case has attracted considerable publicity in the past, driven in part by the mother of the male victim . . . The risk of adverse publicity is much reduced over the period of [X's] first steps to reintegration into the community . . . by the lack of general awareness of his whereabouts. In the context of an index event that took place in . . . and with one of the victim's families there, and the other victim's mother living in . . . there is a low risk of chance meeting in the local towns. 12. Is this request supported by all members of the MDT? Yes. Within the MDT there are a variety of views regarding the degree of [X's] therapeutic engagement, and the meaning of this, but consensus that for specific leaves into the community escorted by staff, the risks are low currently."
[12]On 15 August 2008, Mrs A Gallagher, a Senior Case Worker at the Ministry of Justice's Mental Health Unit, responded to the application on the behalf of the Secretary of State. In her letter she stated: " . . . In view of the high profile given to this case a Ministerial decision was needed, and I apologise for the inevitable delay. Unfortunately the Minister did not agree to grant [X] any leave at present, and no reasons were given for the decision. I am sorry to send what must be, for [X], a disappointing response, but it may be the case that after a period of continued stability and engagement a more favourable outcome may result from any future requests".[13]In November 2008 a Care Programme Approach Review report on the claimant was prepared. In section 8 of the report, which records "Progress since last CPA", the passage headed "Psychology" sets out the assessment of the claimant's Counselling Psychologist, Mr Iain Sunter:
"I see [X] on a weekly basis for dynamic psychotherapy. It would appear [X] creates 'smoke and mirrors' to avoid feeling mainly anger and rejection. There is also a sense that if this young man were to lose control it would have a devastational result."
[14]On 5 December 2008, Dr Morris wrote to Mr Jonathan Friel of the Ministry of Justice's Mental Health Unit, saying this:
"Thank you for your recent consideration of our request for [X's] escorted community leave. With greatest respect, however, I am writing to appeal this decision in the hope that some markers may emerge about how progressing his care might proceed in the future. My understanding of the situation is that alongside the fact of huge historical risk that [X] presents on the basis of his index offence . . . his case has become something of a touchstone in relation to the issue of secondary victimhood, making his management more complex. On our side, as his clinical team, the dilemma that we are faced with is how to develop a strategy of care or a care pathway in this context. Our clinical view currently is that having stepped down from a high secure placement and having stabilised here, in addition to providing PD treatment, our central task is to begin the process of rehabilitation -- part of which is section 17 leave into the community. What would be helpful to know is whether the recent decision not to grant section 17 leave escorted into the community is for the foreseeable future, or whether it is pending some other milestone or milestones that he might achieve. It may well be, given the constellation of issues that surround [X] that his progress needs to be much slower than we as a team had envisaged. If this is the case, then we would need to develop a new strategy for his care, and indeed it might be that we should review whether he might be more suitably managed in a custodial rather than a healthcare setting (he being a s47/49 transfer patient) until such time as the process of rehabilitation can commence. I am aware that [X] presents a complex set of difficulties, and that it might be easier to discuss on the telephone, so I shall try to contact the unit following this note."
[15]On 17 December 2008 the claimant's solicitors wrote to Mrs Gallagher, stating:
" . . . It is clear that Dr Morris views community leave as an essential ingredient in the rehabilitation of [X]. It is clear that [X] has stepped down from a high secure environment and remains stable. What is not clear is the reason why the Ministry of Justice has not granted Dr Morris' request for community leave . . . It is our view that to not set out clearly reasons for a Ministerial decision not to grant is grossly unfair to both patient and treating team. As Dr Morris remarked in his 5th December 2008 letter to yourselves he has appealed the decision not to grant community leave 'in the hope that some markers might emerge about how progressing his case might proceed in the future'. It is our view that not only is this situation an unfair one to [X], it is potentially unlawful and in violation of [X's] rights under Article 5(1) of the European Convention of Human Rights . . . Quite clearly, it is impossible to investigate whether the treatment for [X] could be provided in the community safely and adequately without him being tested. The first test is, of course, escorted community leave. Accordingly, we request on behalf of [X] an urgent response to this letter setting out the reasons why [X] has been denied escorted community leave in response to his Responsible Clinician's 23rd July 2008 request. In particular, we request from the Ministry of Justice clear indication as to the therapeutic interventions and events which are required to have taken place before a successful application for escorted community leave. It is also important to set timescales for the achievement of the interventions and events . . . "
[16]On 22 December 2008 Mrs Gallagher replied to Dr Morris' letter of 5 December 2008, stating:
" . . . I am aware of the problems you face and that [X's] progress is likely to be slow. As you know, the request was refused by the Minister who gave no reasons for his decision. This of course makes planning future care for [X] somewhat difficult. However, it is not our intention to let this continue indefinitely, but to put the case again before the minister. It is too soon to do so at present, but intend to make further recommendations in March or April and I would be grateful for a further request from you around this time. In the meantime if you need to discuss the case, please do not hesitate to telephone me on the number above."
[17]On 20 January 2009 Mrs Gallagher wrote to the claimant's solicitors. She stated:
"Thank you for your letter of 17th December regarding the previous refusal of escorted leave. Please accept my apologies for the delay in responding. A further recommendation to grant escorted leave has been submitted to the Minister. I am unable to estimate when a response will be given but I will advise you and Dr Morris as soon as I have any information."
The Secretary of State's decision[18]On 3 February 2009 Mrs Gallagher wrote again to Dr Morris. It is in this letter that the Secretary of State's decision under challenge in these proceedings is contained. The letter states:
"Further to my letter to you of 22nd December, a further submission was put before the Minister requesting escorted leave in the local area and clarifying the exclusion areas. However, the request was again refused. The Minister commented that due to the deeply disturbing nature of the crime and importantly, the perspective of the victim's family he would not allow escorted leave. As I have said previously, I am aware of the difficulties involved in rehabilitation when there can be no s17 leave, particularly when there is little guidance on what [X] can do to progress the issue. I can only suggest that the request is again submitted later in the year."
[19]The claimant's claim for judicial review seeks an order to quash that decision. The relevant statutory provisions[20]I can outline the relevant statutory context most succinctly by adopting what was said about it by Richards J (as he then was) in paragraph 7 of R(P) v(1) Mersey Care NHS Trust,(2) Dr Mulligan,(3) Home Secretary [2003] EWHC 994 (Admin):
" . . . 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 that case 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."
[21]Section 41 of the 1983 Act, under the heading "Power of higher courts to restrict discharge from hospital", provides:
"(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section . . . (3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows -- (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely -- (i) power to grant leave of absence to the patient under section 17 above . . . "
[22]Section 49 of the 1983 Act, under the heading "Restriction on discharge of prisoners removed to hospital", provides:
"(1) Where a transfer direction is given in respect of any person, the Secretary of State, if he thinks fit, may by warrant further direct that that person shall be subject to the special restrictions set out in section 41 above . . . (2) A direction under this section shall have the same effect as a restriction order made under section 41 above . . . "
[23]Section 17 of the 1983 Act provides, under the heading "Leave of absence from hospital":
"(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 . . ."
The Code of Practice[24]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.[25]In Chapter 1 of the code, the "Statement of Guiding Principles", paragraph 1.2, under the heading "Guiding principles", states the "Purpose principle" in this way:
"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 of the code 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."
[26]In Chapter 21 of the code, which provides guidance specifically on leave of absence for detained persons under section 17 of the 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 . . . • (in the case of mentally disordered offender patients) consider whether there are any issues relating to victims which impact on whether leave should be granted and the conditions to which it should be subject."
The submissions made for the claimant Context[27]For the claimant, Mr Roger Pezzani submitted that in a case such as this the discretion vested in the Secretary of State under the relevant provisions of the 1983 Act had to be exercised on the basis of "precedent fact".[28]The claimant is a restricted, transferred prisoner, the Secretary of State having directed under sections 47 and 49 of the 1983 Act that he be removed from prison and detained in a specified hospital; and that he be subject to the restrictions provided for in section 41. The claimant had been transferred from prison to high security conditions at Broadmoor and, in August 2007, from there to medium security conditions at the hospital where he is currently detained. He had made this much progress so far. The relevance and force of the expert view[29]Mr Pezzani observed that the Secretary of State had acted on expert advice when issuing his warrant under section 47, as he was required to do. This exercise of discretion had an explicitly therapeutic grounding and it was the exercise of a duty as well as a discretion (R(D) v(1) Secretary of State for the Home Department,(2) National Assembly for Wales [2005] MHRR 17 para 33). Mr Pezzani said the Secretary of State had been bound by the same considerations when he consented to the claimant's transfer from high security to medium security conditions. The Secretary of State could not interfere with the therapeutic imperatives behind those previous decisions of his without a cogent countervailing reason for doing so. Here there was none. Instead the Secretary of State had explicitly relied on two matters which were not related to the issue before him. The issue was simply whether limited escorted leave would put the public at risk, and, if it would, whether the degree of risk outweighed the therapeutic and rehabilitative advantages. Risk[30]In submitting the application for escorted community leave, Dr Morris had framed a comprehensive proposal. Mr Pezzani took issue with the explanation offered for the Secretary of State's rejection of that proposal in paragraph 9 of the summary grounds of defence, which contended that a number of factors contributed to the Secretary of State's conclusion on the level of risk the claimant would pose were he to be granted escorted community leave: the claimant's failure to engage in group therapy, the "evidence of his evasiveness which made an assessment of the risk that he poses problematic", the "pressure" that had been placed on Dr Morris by the claimant "for an application for escorted leave to be made", Dr Morris' acknowledgment that the claimant's case is "complicated" and that a slower route towards rehabilitation might be appropriate, and the Secretary of State's "concerns" about the "strong parallels between the index offences and the application for leave", which were not assuaged by the reports "that indicated that the claimant has remained isolated in hospital". Mr Pezzani said that the Secretary of State could not, on the basis of those reasons, fairly and reasonably come to the decision he had made.[31]The evidence on which the Secretary of State ought to have relied, said Mr Pezzani, was that contained in the formal application for leave, in part 9, under the heading "Key issues from risk assessment and mental disorder that the leave(s) will test". The crucial conclusion was that the claimant's escorted leave in the community would not involve the re-creation of those aspects of what Dr Morris described as the "constellation of issues" which had led to his index event, save that this would be significant for the claimant -- as Dr Morris put it -- "in terms of his emergence from a care setting into the community (a component of the index offence circumstances) albeit in a very controlled way". Rehabilitation[32]The answer to the notion that pressure had been applied by the claimant to Dr Morris to apply for him to have escorted community leave, submitted Mr Pezzani, was to be found in Dr Morris' letter of 5 December 2008 to Mr Friel, expressing his perplexity at the Secretary of State's unreasoned refusal of his request and the dilemma facing the claimant's clinical team in seeking a way forward for the claimant's rehabilitation. The Secretary of State's decision[33]Mr Pezzani submitted that the reasons given for the Secretary of State's decision in the decision letter of 3 February 2009 betrayed a basic unfairness. The Secretary of State had clearly failed to address the relevant issue. This decision was inconsistent with his previous decisions to direct the claimant's transfer from prison to hospital and, subsequently, from high security to medium security conditions.[34]Mr Pezzani's principal submission was that the two reasons the Secretary of State gave for his decision demonstrated an irrational approach. The decision was manifestly unreasonable. The Secretary of State's reliance on the "deeply disturbing nature of [X's] crime" could not rationally found a decision that the leave applied for would be unsafe. The same could also be said of "the perspective of the victim's family". The decision made by the Secretary of State was not, on its face, predicated on any perceived risk to the public. Nor was there any contemporary evidence that the Secretary of State had considered this question at all. The reality was that the Secretary of State had no evidence that the claimant's escorted leave would represent a risk to the public. He had failed to identify what the risk was and why the risk management proposals put forward by the clinical team would be inadequate to contain it. This was, said Mr Pezzani, the starkest possible example of the Secretary of State failing to grapple with the issue to which he had to address his mind. The Secretary of State's departure from expert clinical opinion[35]Mr Pezzani submitted that if the Secretary of State was going to differ from the expert clinical opinion offered by Dr Morris, he would have required clear and convincing evidence to do so. He had none. The Secretary of State's task involved a balancing exercise in which the perceived therapeutic benefit the leave would have for the patient was set against the level of risk it would involve for the community, there was no evidence here of that exercise having been carried out. Post-rationalization[36]Mr Pezzani said the reasoning in the summary grounds of defence was, in truth, not the Secretary of State's but the Treasury Solicitor's. He pointed to the jurisprudence summarized in paragraph 62.4.6 of the fifth edition of Michael Fordham QC's "Judicial Review Handbook", reflecting the court's resistance to the rationalization of decisions by retrospective reasons provided when the decision in question was under challenge. If the reasons now advanced on behalf of the Secretary of State had truly been his at the time of his decision it is curious that he did not communicate them through Mrs Gallagher when she issued the decision. It was not open to the Secretary of State to post-rationalize his decision by the forensic archaeology entailed in the use of documents which may not even have been before the Secretary of State when he made his decision. None of this could transform what is plainly an unreasonable decision into a reasonable one. In any event, Mr Pezzani submitted, the reasons now proffered did not undermine the core of the claimant's argument, which was that it was unreasonable for the Secretary of State to refuse his consent in this case in the absence of evidence to override the claimant's clinical team's unanimous recommendation. The analogy with the case of James[37]Mr Pezzani sought to place his submissions on the same foundation as the decision of the House of Lords in Secretary of State for Justice v James [2009] UKHL 22, in which the public law duty of the Secretary of State for Justice in the operation of the regime for sentences of imprisonment for public protection had been severely criticized. Mr Pezzani referred in particular to paragraphs 3 and 4 of the speech of Lord Hope, paragraphs 28, 36 and 37 of the speech of Lord Brown of Eaton-under-Heywood and paragraphs 109 and 122 in the speech of Lord Judge. There the existence of a public law duty to allow detainees to engage in and demonstrate rehabilitation had been recognized. It would be but a small step, submitted Mr Pezzani, to extend, by analogy, the principle conceded by the Secretary of State in James to the position of the claimant. Here the claimant had been transferred to hospital for treatment on the Secretary of State's direction. The treatment involved a rehabilitative element. But the Secretary of State had here taken a decision here contrary to that objective without any foundation in the evidence before him and in spite of the unanimous professional advice to the contrary. In so doing, the Secretary of State had, as Mr Pezzani put it, "interfered with the claimant's ability to progress towards liberty by demonstrating that he does not present a risk that necessitates the deprivation of his liberty". Proportionality[38]Mr Pezzani submitted that the principle of proportionality applies in this case; and that the Secretary of State had disproportionately restricted the claimant's opportunity for further treatment and rehabilitation. The submissions made for the Secretary of State The false analogy with the case of James[39]For the Secretary of State Ms Gemma White submitted that the decision of the House of Lords in James adds nothing to the claimant's argument. The circumstances were very different from those of the present case. In any event, no breach of Article 5 of the Human Rights Convention arose either in James or in this case. Risk[40]Ms White said the question for the Secretary of State in this case concerned risk to the public. Whilst she accepted there was no evidence of what the Secretary of State had in mind at the time of his decision other than the contents of Mrs Gallagher's letter of 3 February 2009, she nevertheless founded her submissions on the materials which had been available to the Ministry of Justice. These included a letter from Dr Morris to Mr Friel dated 13 May 2008 setting out his "Annual Report" on the claimant; a Nursing Progress Review of the claimant prepared in November 2008; and the Care Programme Approach Review Document of 26 November 2008. Some of the contents of these documents are distilled in the Secretary of State's summary grounds of defence:
"3. The claimant does not engage in therapeutic interventions that involve groups of patients . . . Clinicians with the conduct of the claimant's care comment that his non-engagement removed one of the means of monitoring his mental state and hence assessing his risk . . . Similarly, the claimant's minimal levels of interaction with staff and patients and self-isolation within the hospital . . . mean that opportunities for monitoring his mental state and assessing his risk by observing interactions are similarly limited. 4. . . . Dr Morris acknowledged that whilst there was no evidence of the claimant harbouring violent fantasies, because he keeps his own counsel, such fantasies might well not be disclosed. . . Dr Morris subsequently commented at the November 2008 CPA meeting that the claimant ' . . . creates 'smoke and mirrors' to avoid anger and rejection. There is also a sense that if this young man were to lose control it would have a devastational result'. 5. The claimant has iterated frustrations at his detention and the lack of leave that he has been granted into the community . . . Dr Morris identified leave into the community as a part of the claimant's rehabilitation; but acknowledged that the claimant's case presents a 'complex set of difficulties . . . ' and that given the issues that surround him it may be that the claimant's progress needs to be slower than the clinical team had envisaged."
[41]Ms White particularly relied on two paragraphs of the Secretary of State's summary grounds of defence, paragraphs 9 and 10, which state:
"9. In considering the application for escorted leave that was made on the patient's behalf, the defendant noted that the claimant's responsible clinician stated that escorted leave into the community would allow his risk to be assessed in a community setting and that it would comprise rehabilitative treatment. The claimant's responsible clinician stated that the risks associated with the escorted leave are 'probably low'. The [Secretary of State] however noted that the means by which the claimant's condition can be assessed are restricted by his non-engagement in group therapy . . . and that notwithstanding the claimant's engagement in individual therapy, there was evidence of evasiveness which made an assessment of the risk that he poses problematic . . . [The Secretary of State] noted that pressure had been placed on the responsible clinician by the claimant for an application for escorted leave to be made . . . and that the responsible clinician did appear to have some doubts as to whether escorted leave is suitable, acknowledging as he did that the case is complicated and that a slower route towards rehabilitation might be appropriate . . . Finally, the [Secretary of State] noted the strong parallels that arise between the index offences and the application for leave . . . the reports that indicate that the claimant has remained isolated in hospital . . . did not assuage the [Secretary of State's] concerns in this regard. In light of these matters the [Secretary of State] differed from the view that the responsible clinician had reached as to the level of risk that the claimant would pose were escorted leave to the community to be granted and refused to grant the request. The [Secretary of State] maintains that in all the circumstances this decision was lawful. 10. The reasons that have been provided in support of the [Secretary of State's] decision to refer to the nature of the claimant's index offences. The [Secretary of State's] reasons should be viewed in the context of the [Secretary of State's] decision-making power and the relevant considerations of risk and rehabilitation that arise. The reference to the nature of the claimant's index offence as a reason not to grant the leave means that he is aware that the level of risk that he is still perceived to pose outweighs the rehabilitative benefits to him of the leave being granted."
Proper late explanation[42]Rather than being an inappropriate post-rationalization of his decision, said Ms White, the Secretary of State's summary grounds should be seen as falling within the category of "proper later explanation" supported by the jurisprudence referred to in paragraph 62.4.4 of Mr Fordham's handbook. The Secretary of State's decision[43]Ms White submitted that the essential consideration, or test, in a case such as this, was whether the perceived level of risk was too high to justify informing the overall process of risk assessment by means of escorted community leave. The question for the Secretary of State, therefore, was whether the risk to the public was sufficiently low to justify consent for the leave being granted.[44]It is true, Ms White accepted, that this issue had not been tackled in the Secretary of State's letter. However, there was no statutory duty to give reasons. The adequacy of the reasons given by the Secretary of State must be judged in the light of their being directed to an educated audience including the responsible clinician.[45]Ms White submitted that reference in the Secretary of State's decision letter to the claimant's offences can and should be taken as evidence that the Secretary of State was indeed grappling with the issue of risk. She acknowledged that if one wanted to see how the issue of present -- as opposed to historic -- risk was considered, one would have to look at the summary grounds of defence. She pointed out, however, that Dr Morris himself, in his letter of 5 December 2008 to Mr Friel had referred to the "huge historical risk that [X] presents on the basis of his index offence". This, submitted Ms White, was evidence of the claimant's level of static risk. Substance was added to it by the matters referred to in paragraph 9 of the summary grounds of defence.[46]Ms White also referred to the measure of uncertainty noted in part 10 of the application itself. Such uncertainty is amplified, she said, by the doubts Dr Morris expressed in his letter of 5 December 2008 to Mr Friel, which he ended by expressing his awareness that the claimant "presents a complex set of difficulties", and in which he referred to the "constellation of issues that surround [X]". The latter phrase echoed the language Dr Morris had used in applying for leave; he had stated in part 9 of the application that the escorted leave would not involve the re-creation of the aspects of "the constellation of issues" that led to the claimant's index event -- other than that this would be significant for him in terms of his emergence from a care setting into the community. Thus, said Ms White, there was a discernible parallel to be drawn between the escorted leave proposed and the claimant's index offences. She put this parallel side by side with the short assessment recorded by the claimant's psychologist, Mr Sunter, in section 8 of the Care Programme Approach Review document of November 2008, which refers to the potentially devastating consequences of the claimant losing control of himself. Conclusion[47]In my judgment, the submissions made on the claimant's behalf by Mr Pezzani are essentially correct and are to be preferred to the submissions of Ms White for the Secretary of State. I say "essentially" because I take the view that the case can and should be approached in a rather simpler way than some of Mr Pezzani's argument might have suggested.[48]The practical question on which the Secretary of State had to bring his mind to bear in this case was the question of risk. This point was central in Mr Pezzani's submissions and accepted by Ms White in hers.[49]The question of risk did not arise in a general and unqualified way. It arose in the specific context in which the request under section 17 was made. The request was for escorted community leave. There was a specified and clear plan for the proposed leave, which included arrangements for monitoring and reporting. The Secretary of State did not, it seems, take issue with the appropriateness or likely effectiveness of that plan. Nor, so far as one can tell from his decision, did the Secretary of State engage with the nature and scale of any risk which might reasonably be expected to arise if the plan was implemented. If one asks the question: "What, if any, was the risk that troubled the Secretary of State and to whom was it posed?" one finds no answer in the Secretary of State's decision. A fair inference, and in my view the right one, is that the Secretary of State did not ask himself this question at all. In any event, if he did, the answer he gave to it is not clear.[50]In my judgment, the Secretary of State has in this case fallen into the basic public law error of failing to take into account considerations of relevance to the decision he was called upon to make -- the factors set before him relating to a crucial issue for him to determine, the issue of risk as it related specifically to the context of an application for the claimant to have escorted community leave -- and, conversely, taking into account matters not material to this issue.[51]When the Secretary of State's decision was first produced on 15 August 2008, no reasons at all were given for his rejection of the request for leave. Some six months later, in February 2009, apparently after the request for leave had been reconsidered, the Secretary of State confirmed the decision he had already made. His reasons then were encapsulated in a single sentence. There were two. They were said to have been comments made by the Minister. They were, first, "the deeply disturbing of nature of [X's] crime", and secondly, "and importantly, the perspective of the victim's family".[52]There can be no dispute that the claimant's crimes were, on any view, "deeply disturbing", and I have no reason to doubt that the families of both of his victims are, and will remain, profoundly affected by what he did. However, in the Secretary of State's decision, neither of those considerations has been brought to bear, in any intelligible way -- let alone convincingly -- on the question of risk in the particular context in which the Secretary of State had to address that question in the present case: the application for community leave in the defined geographical circumstances and under the regime of management proposed. On the contrary, they are, in my judgment, factors which in themselves do not seem to impinge upon that question.[53]Both in Mrs Gallagher's letter of 22 December 2008 and in the decision letter of 3 February 2009, I think it is accepted that the escorted leave Dr Morris had sought for the claimant would be, or at least would be likely to be, conducive to the claimant's rehabilitation and thus in his interests as a patient. But this positive factor is not weighed against considerations germane to the protection of persons other than the claimant in the particular situation contemplated by the application for leave.[54]I reject the suggestion that it is appropriate to look elsewhere for reasons to substantiate the Secretary of State's decision. It may be that the factors assembled in the Secretary of State's summary grounds of defence could have amounted to the basis for a proper decision to reject the proposal for escorted leave. But they were not patently the basis for the Secretary of State's decision. Indeed, they seem to have been put forward now as an attempt to rationalize and justify a decision which makes no mention of them at all. I do not believe it would be right in this case for the court to speculate about a decision the Secretary of State might have made; it ought to confine itself to the one he did make. I do not say that if the decision is remitted to the Secretary of State he would not be able to attach significance -- perhaps, in the exercise of his discretion under section 41, decisive significance -- to the matters Ms White has mentioned. But this would be for him to consider once given the further opportunity to do so.[55]I believe the conclusion is inescapable that in rejecting the request for escorted community leave, the Secretary of State failed to provide any rational explanation for doing so, and gave none that properly bears on the protection of the public, and how, if at all, this statutory consideration has been properly taken into account in the present case. Indeed, in my judgment, the reasons put forward for the Secretary of State's decision disclose irrationality in it.[56]It is therefore my view that the Secretary of State's decision in this case is unlawful and cannot stand. In coming to this view, it has not been necessary for me to step beyond what I shall call ordinary Wednesbury principles, or to venture into the territory of proportionality.[57]I therefore grant permission for the claim to proceed to the determination of the substantive merits and, having considered those merits, I hold it to be well founded. The claim therefore succeeds.[58]I shall hear counsel on the appropriate form of relief.[59]MR PEZZANI: My Lord, page 11 of the bundle in X contains section 6 of the claim form.[60]THE DEPUTY JUDGE: An order quashing the decision of 3 February 2009. Other relief that the court considers just and appropriate.[61]MR PEZZANI: I do not think I can ask for anything other than the first one.[62]THE DEPUTY JUDGE: That was what I had in mind. I wanted to give you the opportunity of considering that. It seems to me that I must quash the decision and the matter goes back to the Secretary of State for proper consideration in the light of my judgment.[63]MR PEZZANI: My Lord, yes. I do not see that a declaration would do any good.[64]THE DEPUTY JUDGE: In effect, you have that. It is in the judgment. I have dealt thoroughly with the facts. I have quite deliberately done that.[65]MR PEZZANI: My Lord, yes. It is there.[66]THE DEPUTY JUDGE: There for the Secretary of State to take into account.[67]MR PEZZANI: I am obliged. Also on the basis of the manner in which your Lordship has approached it by way of irrationality, it would not be appropriate for me to ask for anything else.[68]THE DEPUTY JUDGE: There it is. That is what I propose, subject to anything Ms Patel may wish to say. First, on the question of relief, do you seek to disturb my original conclusion that it is a quashing of the decision and the matter thus will he remitted to the Secretary of State for him to reconsider?[69]MS PATEL: I do not think I can, my Lord. I am in the unfortunate position of standing in for Ms White, and Ms White's instructing solicitor being absent also today.[70]THE DEPUTY JUDGE: I understand that.[71]MS PATEL: I think the ideal preference would be for the Minister to have some time to consider your judgment, my Lord, in order to obviate the need for --[72]THE DEPUTY JUDGE: Maybe it comes to the same thing. In a sense, when one reads the correspondence -- and I do not know whether you have had the opportunity of doing that, but I have quoted most of it in my judgment -- at one point anyway Mrs Gallagher was actually inviting a re-submission. We are now beyond the time when that was said to be likely to be entertained. At all events, the Secretary of State has the benefit of my judgment in going about his task in the right way. There should be no delay in that happening. I want to make that clear. There should be no delay in that happening. I propose to grant the relief Mr Pezzani seeks and not to provide any stay of that relief. It seems to me that the relief follows from the decision I have made.[73]MR PEZZANI: I am obliged, my Lord. I have two further applications, if I may. The first is for detailed assessment of my publicly funded costs. The second is for the defendant to pay the claimant's costs, to be assessed if not agreed, within 21 days.[74]THE DEPUTY JUDGE: Shall we deal with those first. They stand together. Yes, detailed assessment of the claimant's costs and the defendant is to pay the claimant's costs on the basis that you have invited me to consider, unless, Ms Patel, you seek to resist that, do you?[75]MS PATEL: No, my Lord.[76]THE DEPUTY JUDGE: No. Very well. That deals with costs.[77]MR PEZZANI: I have no further applications.[78]THE DEPUTY JUDGE: Thank you.[79]MS PATEL: My Lord, on the matter of leave to appeal, I wonder, in the light of the situation I am in, whether your Lordship might be receptive to, in the event that permission were to be sought from yourself, those submissions be made in writing within 7 days.[80]THE DEPUTY JUDGE: That I find acceptable in the circumstances, although I do not encourage any application, Ms Patel. I have decided this case, as you will be aware having listened to the judgment I have given, on the facts.[81]MS PATEL: Yes, my Lord.[82]THE DEPUTY JUDGE: I applied what I regard as mature and uncontroversial jurisprudence. I have applied the law to the facts and I have given close attention to the facts. I do believe what is important in this case now is that the matter reaches some sort of resolution in the light of the judgment I have given. I cannot do more than that in persuading you or Ms White not to make an application for permission. You are at liberty to do so, but I do not encourage it.[83]MS PATEL: I take that very much on board. We are grateful for the care you have given your judgment and the attention you have shown to the facts and as such no application may follow.[84]THE DEPUTY JUDGE: I understand. I am grateful to you both and above all to the court staff and particularly the shorthand writer. Thank you very much.