“I scared him and that was enough for me… at the time – to see the look in his eyes.”
“Is the patient still suffering from mental disorder? If so, is the disorder of a nature or degree which makes it appropriate to receive medical treatment in hospital? Is it necessary for the health or safety of the patient or for the protection of others that such treatment be received? And is appropriate medical treatment available to the patient?”
“… [He] subsequently manufactured weapons in order to assault the said patient. The weapons were manufactured from the arms of his glasses and were essentially a plastic handle with a protruding metal sharpened pen of some one and a half to two inches long. [The Claimant] kept one of these instruments in his own possession and hid the second one in the garden area of the ward and at the time also invited several other patients on the unit to use this weapon against the patient he had taken a dislike to, should the opportunity arise. When the weapons were discovered by staff, [the Claimant] later disclosed that it had been his intention to stab the other patient in the neck. He considered this an appropriate response after he felt that the other patient had been “winding him up”.”
“L is referred to maximum security because of his physical violence and risk to others. It was reported that, in Stockton Hall medium secure unit, L had taken a particular dislike to another patient on the ward and secreted and fashioned a weapon. The weapon was manufactured from the arms of his glasses and was initially a plastic handle with a protruding metal sharpened pen of 1 ½ to 2 inches long. It appeared that he sharpened it while hiding it in his hands and rubbing it against the walls while making a telephone call. He kept one of these instruments in his own possession and hid the second one in the garden area of the ward. At the time he also invited several other patients on the unit to use the weapon against the same patient. He later disclosed that he intended to stab the patient in the neck. Although I have not had sight of the instrument I was informed that it was strong enough to stick on the nursing desk.”
“One of these weapons was kept in the [Claimant’s] possession whilst the other was hidden in the garden area of the ward. [The Claimant] made no secret of his intentions to harm the patient he had taken a dislike to, inciting several other patients to use the hidden weapon on him should the opportunity arise. When the weapons were discovered the [Claimant] admitted his intention was to stab the other patient in the neck, which he felt was an appropriate response as the other patient had been winding him up. He later attempted to punch the fellow patient.”
“Overwhelming evidence of a personality disorder, dissocial, borderline and high psychopathy; and evidence of self-harm. Fits the DSPD criteria. He did so in the last assessment by DSPD Unit at Broadmoor. To be considered by the DSPD Panel for admission prior to responding to Stockton Hall. A paper review may be sufficient. Unanimous decision of the panel.”
“Requests by persons to attend the panel as observers should be made to the admissions panel secretary APS. Persons observing the panel will not be expected to contribute to the discussion but may raise questions once a decision has been reached”
“The regimes of care and observation at Broadmoor Hospital can only be justified when the highest level of security is required and no lesser degree of security will provide a reasonable safeguard of the public. It is an unacceptable infringement of patients’ rights to detain them in a higher level security than they require. Standard 5 of the National Service Framework for Mental Health states that an appropriate hospital bed is one that is in the least restrictive environment consistent with the need to protect the service user and the public and is as close to home as possible. The high security available within Broadnmoor Hospital is necessary to detain patients who could not be safely contained within the security available at a medium secure unit.”
“ (a) Evidence of serious planned or unprovoked assaults on others including other patients or staff in secure establishments as well as members of the public. A propensity to kick or punch others is not itself sufficient to qualify a person as requiring high security. A person who persists in causing minor injuries and a nuisance would not qualify; despite the considerable difficulties and strain placed on others. However the frequency and severity of assaults will be taken into consideration. Patients who require prolonged or frequent use of seclusion or enhanced levels of nursing care in less secure environments may be considered appropriate for admission to conditions of high security. Where there is evidence that violent or dangerous behaviour cannot be contained in medium security then care in high security is likely to be required. On the other hand perpetrating a serious assault on another person in the community may not necessarily mean that a person requires high security, if the risk to others can be safely contained in conditions of lesser security. (b) Evidence of the planned use of weapons such as knives, firearms or explosive devices or attempts to make home made weapons or conceal weapons in other secure establishments may warrant consideration of high security. However the opportunistic use of objects as weapons would generally be considered less serious and such behaviour may be safely contained in conditions of lesser security. (c) Evidence of aggressive feelings, intimidation or threats towards a particular person either in the community or in another secure environment and which is considered likely to result in violence against them. Threats in themselves would not be considered a sufficient reason for high security whereas evidence of attempts to act on aggressive feelings of threats may make admission to Broadmoor Hospital necessary. (d) Evidence of serious sadistic behaviour or serious sexual assaults on others including other patients or staff or members of the public may be a reason for detention in conditions of high security. However in order to require high security it would be necessary to demonstrate that any sexually assaultative (sic) behaviour could not be contained in a unit of lesser security with single sex accommodation. (e) Evidence of fire setting, particularly where other persons are put at risk and where the risk cannot be contained by security measures that it would be reasonable to expect of a medium secure unit. (f) Evidence of the use of poisons or drugs to cause harm to others. (g) Evidence of attempts or actual hostage taking. (h) Evidence of persistent, scheming or determined absconding or escape from other secure establishments. In the case of a person who presents a risk of serious harm to others, it may be possible to prevent escape by detaining that person in a local hospital or medium secure unit. If there is evidence that they have attempted to or have successfully escaped from within such a unit then admission to Broadmoor Hospital may be necessary. In exceptional circumstances the person may seek to engage outside help in order to escape or alternatively may be at risk from others outside the unit who may seek to harm them and in these circumstances admission to conditions of high security would be considered. Simply absconding whilst on unescorted or escorted leave from a less secure establishment would not normally be an indication for high security. Any person who has a known propensity for persistent, scheming or determined absconding or escape and who could not be safely contained in a lesser security may require admission to Broadmoor Hospital. (i) Use of alcohol or illicit substances would not normally mean that a person would require admission to conditions of high security except if the use of such substances was associated with a substantially increased risk of harm to others and could not be prevented by other means. This list is not meant to be exhaustive, nor should it be used simply as a checklist. Each case is considered on its own merits, taking full account of the circumstances and patterns of behaviour.”
“Admission to conditions of high security at Broadmoor Hospital is not generally suitable for patients who: i) though exhibiting extreme disruptive or anti-social behaviour in the community or local hospital are unlikely to inflict serious physical injury on others. require close observation to prevent self-injury or suicide, unless this is associated with a significant risk to others.”
“A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may – With a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and Further consider his case in the event of any such recommendation not being complied with.”
“Discharge directly from a special hospital like Broadmoor is extremely rare; a staged discharge is more usual, beginning with authorised day visits from Broadmoor, followed by a period of a trial leave to an RSU [Regional Medium Secure Unit], then a formal transfer to an RSU with further transfers to local hospitals and then to hospitals, culminating in a conditional discharge.”
“It is an unacceptable infringement of a patient’s rights to detain them in a higher level of security than they require.”
“It is true that within conditions of high security [the Claimant] would be subjected to a more restrictive regime. This is, however, the very reason why he was referred there…”
“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed ofthe gist of the case which he has to answer.”
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them…. It follows of course that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”
“There is, pace Sir Louis Blom-Cooper QC in R v Lambeth BC ex parte Walters [1993] [Times, 6 October], no authority for the proposition that there is a general duty to give reasons for administrative decisions, and there is the high authority of Lord Mustill to the contrary [1993] [3 All ER 92] at 111 [in Doody] …but to my mind the authorities show an ever-increasing variety of situations where, depending on the nature of the decision and the process by which it is reached, fairness requires that reasons be given. … As Lord Oliver said in Leech v Parkhurst Prison deputy Governor [1988] [1 All ER 485 at 509, [988 AC 533 and 578]; “…the function of adjudicating upon charges of infractions of prison discipline…is a public function which affects the liberty and to a degree the status of a person affected by it. As such it must, it seems to me, be subject to the general common law principle which imposes a duty of procedural fairness when a public authority makes a decision not of legislative nature affecting the rights, privileges and interests of an individual.”
“Decisions on escape classification based on an assessment of a prisoner’s escape potential ….. although the two matters, security category and escape risk classification are connected and may overlap (in the sense that, for example, circumstances such as association with criminal gangs may be relevant to both) they are distinct and considered separately.”
“hold in conditions of high security, some of the most difficult and dangerous criminals in the country”… The main differences between the “HRA” and “STDA” require HRA prisoners to move cells every 28 days and STDA every three years. HRA will be subject to cell search every 14 days and STDA cell search every 28 days. HRA prisoners are also strip searched both before and after visits and STDA prisoners only strip searched after visits, not before. HRA prisoners are also subject to hourly observations including at night whereas STDA prisoners are observed 10 times over the course of every 24 hour period (5 times during the night).”
“This is not a case of the future treatment in the prison estate of a convicted prisoner whose classification at a particular period in time of course is a matter of importance to him or her and has some impact upon his prospects and timing of any application for parole.”
“There is a legitimate basis in an appropriate case at an appropriate time for the supervision of the decision making process and its impact upon a claimant.”
“It is in the very nature of risk assessment that one may need to act promptly. Indeed, if one is not to give rise to the very risk that the regime is designed to avert, it would be wrong to rule that there is an arguable case of a minimum requirement of fairness to notify the person before the measures are put in place of the basis on which it is assessed that there is a risk of escape or exceptional escape risk in advance. The very nature of risk requires that those who have the obligations to prevent untoward events and to make assessments of risk have to have the freedom to move in the way that they conclude is best having regard to the nature of risk, the consequences and such like.”
“By that concession Mr Sedley recognises that the application of natural justice principles, and in particular the right to be heard, must depend in each situation on the subject matter and the circumstances. This was made clear in Payne v. Lord Harris of Greenwich[1981] 1 WLR 754 . A prisoner sought a declaration that he was entitled to be given the reasons for refusing him parole so that he could make representations in rebuttal. This court rejected his appeal. Lord Denning M.R. said, at p. 757: “No doubt it is the duty of all those concerned – from the member of the local review committee, to the Parole Board, to the Secretary of State – to act fairly. That is the simple precept which now governs the administrative procedure of all public bodies. But the duty to act fairly cannot be set down in a series of set propositions. Each case depends on its own circumstances.”
“In the well-known case of Reg. v. Gaming Board for Great Britain, Ex partes Benaim and Khaida [1970] 2 Q.B. 417, 430, Lord Denning M.R. said: ‘It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject matter …’ In a context in which the public interest may be put at risk by the inopportune release of a prisoner on licence, no constraints or pressures should weigh upon the Parole Board in coming to what must in the end be a decision in which expedience must be an important influence.”
“The scope and extent of the principles of natural justice depend on the subject matter to which they are sought to be applied.” “No doubt it is the duty of all those concerned – from the member of the local review committee, to the Parole Board, to the Secretary of State – to act fairly. That is the simple precept which now governs the administrative procedure of all public bodies. But the duty to act fairly cannot be set down in a series of set propositions. Each case depends on its own circumstances.”
“Rights of Prisoners Charged.”
“The person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests.”
“… I would… accept that whether the rules of natural justice have been transgressed is not to be determined by a Wednesbury test: “Could any reasonable tribunal be so unfair?”
“Where after an extra-statutory recommendation by the Mental Health Review Tribunal, the Secretary of State seeks advice from the Advisory Board on whether to give his consent to the transfer of a patient, or grant leave of absence, pursuant to his powers undersection 41(3)(c) of the Mental Health Act 1983 , the Secretary of State accepts that the patient is entitled by reason of procedural fairness (subject to public interest immunity or some other substantial reason for departing from these principles which will normally be communicated to the patient’s advisers): (1) to be told the gist of any new information before the Advisory Board on a relevant point and, in particular to be told the gist of the report to the Advisory Board by its member who has visited the hospital; (2) to make written representations to the Advisory Board in response to such material before the Advisory Board reaches a conclusion on its advice to the Secretary of State; (3) to be given a copy of the advice from the Advisory Board to the Secretary of State, and to be given an opportunity to make written representations on the matter to the Secretary of State before the Secretary of State reaches his conclusions; (4) to be given reasons for the decision of the Secretary of State; (5) to make, thereafter, any further written representations to the Secretary of State which will be considered, it being a continuing process of review by the Secretary of State of the need for and application of restrictions.”
“(4) The principles of fairness are not to be applied by rote identically in each situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects.”
“Requests by persons to attend the Panel as observers should be made to the Admissions Panel Secretary. Persons observing the Panel will not be expected to contribute to the discussion but may raise questions once a decision has been reached.”
“The European court has consistently said not only that proceedings concerning the validity of a deportation order do not engage article 6 but that it makes no difference that the order for deportation has an incidental effect upon rights under other articles of the Convention. Even in cases based upon detention pending deportation, where the power of detention is wholly ancillary to the power of deportation and the requirements of article 5(4) are pretty much indistinguishable from those of article 6 (both require the decision to be made by a court, with appropriate procedures), the European court has been punctilious in insisting that article 6 is not engaged… it is clear that the criterion for the European court in deciding whether article 6 is engaged is the nature of the proceedings and not the articles of the convention which are alleged to be violated. If the proceedings concern deportation, article 6 is not engaged, whatever might be the other articles potentially infringed by removal to another company.” (Emphasis added.)
“30. [One] development has been the doctrine, starting with Ringeisen v Austria[1971] 1 EHRR 455 by which the Strasbourg court has extended Article 6 to cover a wide range of administrative decision-making on the ground that the decision determines or decisively affects rights or obligations in private law. … More recently the scope of Article 6 has also been extended to public law rights such as entitlement to social security or welfare benefits under publicly funded statutory schemes, on the ground that they closely resemble rights in private law: Salesi v Italy[1993] 26 EHRR 187 .”
“In so far as the applicant is complaining of his classification as a Category A prisoner and the differences in treatment of those so classified, the Commission considers that this is not a matter which falls within the scope of the rights and freedoms ensured by the Convention. But in so far as the applicant is also complaining about the conditions of his detention and their cumulative effect an issue might arise underArticle 3 of the Convention which the applicant has invoked.”
“The applicants have also contended that the various adjudications against them concerned the “determination” of “civil rights”
“this approach to the internal decision-making stage to be un-contradicted by later Strasbourg authority and consistent with the modern domestic jurisprudence on discretionary administrative decision-making such as A v London Borough of Croydon[2008] EWCA 1445 per Ward LJ at paragraphs 50-59 and Ali v Birmingham City Council[2010] 2 AC 39 , per Lord Hope at paragraph 49. Although these cases were concerned with welfare or economic rights, as opposed to the imposition of sanctions, the conceptual matrix of administrative discretion is the same.”
“A convicted prisoner in spite of his imprisonment retains all his civil rights which are not taken away expressly or by necessary implication” “I accept that there is no clear and unequivocal decision of the ECtHR which establishes this residual freedom of association as a civil right. All the cases where civil rights have been found to have been engaged have been determined on the basis that the disciplinary sanction affects other rights more readily recognisable as private civil rights.” [86][87]. In the latter sentence he was explaining the same view as Maurice Kay LJ. “A convicted prisoner in spite of his imprisonment retains all his civil rights which are not taken away expressly or by necessary implication”
“The Court observes first that the placement of the petitioners in a security cell led in particular, in addition to the solitary confinement itself, and according to the information provided by the petitioners and not contested by the Government, to the restriction of visits to one hour a week – and only face to face meetings in a visiting room with a glass partition – to the restriction of exercise to one hour a day and the impossibility, regarding the first petitioner to study and sit exams. In the eyes of the Court, these are restrictions “affecting the rights of a civil character of the individual”
“The applicant was serving a long sentence for serious offences. He submitted several requests for “prison leave” in order to carry out tasks in preparation for his eventual release. They were refused by Attorney General. The domestic courts rejected his applications for judicial review on the ground that they had no jurisdiction. The ECtHR held by a bare majority that the circumstances involved the determination of a civil right and that the absence of a judicial remedy involved a violation of Article 6. The Court stated (at paragraph 64): “Whilst it is true that the impact on his private life was indirect, it was nevertheless beyond doubt…the Court considers that the restriction alleged by the applicant, in addition to its pecuniary implications, related to his personal rights, in view of the significance of the applicant’s interest in resettling in society. In that connection it is of the view that the applicant’s social rehabilitation was crucial to the protection of his right to lead “a private social life” and develop his social identity.”
“In my view the respondent Government were correct in pointing to the discretionary nature of decisions by the domestic authorities concerning requests for prison leave and in concluding that, where the authorities have discretion as to whether or not to grant a particular concession, that concession does not amount to a “right” and, accordingly, Article 6…does not apply to proceedings concerning its granting or otherwise.”
“The question whether this Convention right is engaged, if at all, has to be decided in the light of the proceedings that are in issue and the nature of the dispute. (paras 78 and 79).”
“there is plainly such a dispute when an application for judicial review is commenced but I do not consider that there is one earlier than that.”
“In any case, the gap between judicial review and a full right of appeal is seldom in practice very wide. Even with a full right of appeal it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and, more especially relevant to this case, on questions of credibility.”
“As it seems to me, the level available of redress, by judicial review rather than by appeal, is an appropriate one. No judge can realistically sit as a Court of Appeal from a psychiatrist on a question of professional judgment. What a judge must be able to do is to ensure that such judgment, to the extent that it exercises a public law function is made honestly, rationally and with due regard only to what is relevant. Within this boundary more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposed of Article 5(4), at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist.”
“The Court understood how vulnerable such patients can be and how much in need of the protection of the world outside the closed world of the psychiatric institution however well meaning. The Court was properly respectful of “therapeutic necessity” and “the psychiatric principles generally accepted at the time”
“Whatever the position before the Human Rights Act the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8. Super-Wednesbury is not enough. The appellant is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out: i.e. whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent, “having regard to the likelihood of its alleviating or preventing a deterioration of his condition.”
“[All of the post-decision procedures], however, come after the order has been made and [the prisoner] has been transferred. It is the initial decision which is the most important step, and which an inmate would most like to have the opportunity to address. It is often the case in any situation involving a decision of an authority that once a decision has been made it is difficult to change it.”
“[The SSHD’s counsel] showed that decisions to place a person in the segregation unit can be revoked quickly and before the expiry of the first three days – for example she said if the prisoner has calmed down. That does not, in my view meet the point being made by Jack J. Any decision to remove to a segregation unit will be made based on a factual basis. The best time to check on the factual basis by asking for the prisoner’s comments is before the decision is made. As Jack J rightly observed once a decision is made, it is difficult to change it. This is particularly so when a decision has been made on a factual basis and when the person subject to a decision seeks to persuade the decision maker, after the decision has been made, that the factual basis on which he acted is wrong. Inevitably the decision maker will be reluctant to conclude that his original decision was wrong. Simon Brown LJ in R v SSHD ex parte Hickey (2)[1995] 1 WLR 734 at 744 made the point that “it is difficult to suppose that [a decision maker] can remain as open-minded as if no clear decision has been taken.””