Court of Appeal

Published March 26, 2008

Regina (Rayner) v Secretary of State for Justice

Before Lord Justice Ward, Lord Justice Keene and Mrs Justice Black

Judgment March 12, 2008

The statutory scheme dealing with the referral of a recalled mental patient to a mental health review tribunal was not incompatible with the patient’s rights under article 5.4 of the European Convention on Human Rights.

The Court of Appeal so stated in a reserved judgment when: (i) dismissing the appeal of the defendant, the Secretary of State for Justice, from the dismissal by Mr Justice Holman in the Queen’s Bench Division ([2007] 1 WLR 2239) of the claim of Daniel Rayner for judicial review of, inter alia, the failure of the secretary of state to refer his case to a mental health review tribunal within the one-month period required by section 75(1) of the Mental Health Act 1983, but allowing a claim for damages in respect of unlawful acts under section 6 of the Human Rights Act 1998 and/or breaches of article 5.4 pursuant to sections 8 and 9(3) of the 1998 Act and article 5.5 of the Convention; and (ii) dismissing the claimant’s cross-appeal against the judge’s finding that the primary and subordinate legislation could be read in a way which was compatible with his Convention rights notwithstanding a lack of direct access to a court.

Mr Paul Bowen for the claimant; Mr Jeremy Hyam for the secretary of state.

LORD JUSTICE KEENE said that (i) the requirement that the court’s decision should be made speedily raised questions about the timescale of the applicable referral procedures under section 75(1) of the 1983 Act; and (ii) the wording of article 5.4 to the effect that the detainee was entitled to take proceedings by which the lawfulness of his detention would be decided gave rise to the question whether the duty on the secretary of state under section 75(1) to make a reference to a mental health review tribunal sufficed to meet the requirement, and if not, whether any other available legal procedures made up the deficiency.

Timescale

Section 75(1) of the 1983 Act could be read compatibly, although on the facts the secretary of state conceded he was in breach.

The secretary of state challenged Mr Justice Holman’s reference to article 5.4 requiring an immediate reference, and his statement that a case should be referred at once unless the circumstances of the applicant or his case positively required otherwise.

However, one could not accept that the secretary of state was entitled generally to take the statutory maximum of one month before making a reference: where the liberty of the subject was at stake, and where his action was to be seen as at least a principal method of getting the issue of the lawfulness of the detention before a court, the concept of speediness required a more energetic and rapid approach; and where the detained person had no direct right to apply to a tribunal it was all the more important that the secretary of state should act with despatch.

However, there was force in criticism of the judge’s use of the word “immediate” to describe the reference required by the Convention, where, for example, certain checks might be required before referral; and the word “speedily” in article 5.4 was a less stringent requirement than arose from the word “promptly” in article 5.3.

The test for the obligation to refer under section 75(1), applied from R (C) v London and South and West Region Mental Health Review Tribunal ([2002] 1 WLR 176, paragraph 43) was to ask whether there was a failure to proceed with reasonable despatch, having regard to all the material circumstances.

Thus, although the judge, before finding that a reference should have been made within almost a week after the issue of the warrant of recall, stated that an “immediate reference” was required, his judgment was upheld on different grounds since on the facts the identified period was appropriate and a breach of article 5.4 had been admitted.

Right to take proceedings

The question was whether the absence of a direct right permitting the claimant to make his own application to a tribunal after recall involved a breach of article 5.4.

The secretary of state was required to make a reference and the patient was then being treated as having made an application.

Whereas section 75(1) of the 1983 Act, if it stood alone, might not now be regarded as sufficient to achieve the protection of article 5.4 rights, the combination of the statutory mechanism, the right of the patient to enforce the secretary of state’s statutory duty by way of judicial review, and the right of the patient to challenge the lawfulness of his detention directly in the courts on its substantive merits by judicial review and/or habeas corpus, did suffice to comply with article 5.4.

Mrs Justice Black and Lord Justice Ward agreed.

Solicitors: Needham Poulier & Partners; Treasury Solicitor.

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