NO: CO/1411/00
IN THE HIGH COURT OF JUSTICE             
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

                               Royal Courts of Justice
                                    Strand
                               London WC2
 
                               17th May 2000

B e f o r e:

MR JUSTICE OWEN

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D.T.

‑v‑

CHASE FARM HOSPITAL

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Computer Aided Transcript of the Stenograph notes of
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040 Fax No: 020 7831 8838
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MR K GLEDHILL (instructed by Bell, Wright & Dallman, Gainsborough, Lincolnshire DN21 2DF) appeared on behalf of the Applicant
MR A MOON (instructed by Bevan Ashford, London) appeared on behalf of the Respondent
MR J MAURICI (instructed by Treasury Solicitors, London SW1) appeared on behalf of the Secretary of State as an interested party

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J U D G M E N T
17th May 2000
1.	MR JUSTICE OWEN: This is an application for a writ of habeas corpus. It is one of two applications arising out of the history of the applicant over a number of years relating particularly to what happened earlier this year. One application was for judicial review. It has been agreed in respect of that that there should be an order. As to this particular application, it has been heard on notice to the Secretary of State and also to the Hospital Trust. I have heard representatives of those two respondents. However, they have not filed any evidence.
2.	The primary facts are not much in issue. The applicant is Doreen Trew. She has been in hospital since she was a child. In 1972 she was found unfit to plead to two charges: one was of murder and the second was of wounding. At that time an order was made under section 5(1)(c) of the Criminal Proceedings Insanity Act 1964. The effect of that was the equivalent of a hospital order with a restriction order: sections 37 and 41 of the Mental Health Act 1983. The applicant became a restricted patient and liable to be detained. She has ever since been detained under this order. The question is has anything happened to change the legality of that  detention?
3.	In January 1997 she moved from Rampton Hospital to Chase Farm Hospital. This was clearly because it was thought that there had been an improvement in some way in her condition. She is now in an unit in which all the other patients are voluntary patients, whereas she is a detained patient.
4.	In July 1997 a Mental Health Review Tribunal granted her a deferred conditional discharge under section 73 of the 1983 Act. However, this did not take effect because there could not be compliance with one of the conditions. That condition was that there should be a community psychiatrist to provide supervision. No community psychiatrist was willing to be appointed. That, no doubt, was because of the legal status of the applicant.
5.	On 19th November 1999 the applicant made a further application to the tribunal for her discharge. The tribunal met on 4th April of this year. The only medical evidence was that whilst Doreen Trew had a mental disorder ‑‑ in fact it is said to have been a psychiatric illness, probably paranoid schizophrenia ‑‑ and while she has no insight, she is compliant with the medication which controls the illness. Although not a risk to herself or to others, she requires constant care  and supervision. She does not need to be detained as this care and supervision can be provided in the community. Mr Gledhill, who appears for the applicant, stresses that it was further reported that her legal status is a barrier to community placement. On that day, 4th April, the treating psychiatrist confirmed that there was no need for the patient to remain liable to recall, and so no reason for the discharge to be conditional as opposed to absolute.
6.	Despite objections to this course, the tribunal adjourned to 1st June of this year. The patient sought judicial review of the decision to adjourn and also habeas corpus on the decision to continue the detention. As I have said, it is agreed that the decision to adjourn must be quashed and it has been quashed. There is an agreed statement of the matters relied upon as justification for quashing that decision.
7.	The applicant now argues that where a tribunal has wrongly adjourned a hearing which should have led to a discharge, and the Secretary of State, being aware of all the relevant medical and other evidence, has not exercised his powers under section 42, there must be a right to seek habeas corpus, because, in these circumstances, although there is a court order that she should be detained, there can be no justification for  continuing compulsory detention.
8.	In this connection Mr Gledhill points out that although a successful finding in the habeas corpus proceedings would secure an absolute and not a conditional discharge from the effects of the section, there is no suggestion that if successful the patient would in fact leave the hospital. The intention, I am told, is that she should stay a voluntary patient. However, although the other patients with her are also voluntary patients, there could be no compulsion upon her, or for that matter presumably the other patients, to stay if she then decided to leave.
9.	In amplification of his general argument Mr Gledhill claims that the court considering the remedy of habeas corpus is not limited to considering whether the procedural requisites for detention are met, but can also take action where there is inadequate evidence to justify detention. Here is the crux of the dispute, since against this contention the Secretary of State argues that the application is misconceived. In their turn the trustees for the hospital comment that success in these proceedings leading to an absolute discharge might be catastrophic for the applicant, but that statement was not developed in any way.
10.	It is necessary to examine the nature of the  remedy sought. To this end I have been referred to cases which indicate the nature of the remedy and the required approach.
11.	The first quotation logically is from R v Secretary of State for the Home Department ex parte Cheblak in which the then Master of the Rolls, Lord Donaldson, said:
“A writ of habeas corpus will issue where someone is detained without any authority, or the purported authority is beyond the powers of the person authorising the detention and so is unlawful.”
12.	Here, says the Secretary of State, there was, and remains, lawful authority, namely the 1972 Court Order.
13.	In this connection it is worthwhile looking at the notes at page 952 of this year’s volume of the White Book which, under the heading of “Onus of Proof”, states:
“If the return to the writ on its face shows a valid authority for the detention it is for the applicant to show that the detention is prima facie illegal.”
14.	We have not, of course, reached that stage, but nevertheless that does indicate, in my judgment, the approach which is appropriate.
15.	My attention was also drawn to Re: Corke [1954] 1  WLR 899. There Lord Goddard, CJ, quoted Lord Wilmot, CJ, in saying that the writ is a writ of right and not of course which:
“... means that before a writ can issue or leave can be given to apply for a writ an affidavit must be before the court showing some ground on which the court can see that the applicant must be unlawfully detained.”
16.	I repeat, the applicant is detained under the order. Without more, such detention is lawful. Indeed it is difficult to see how it can be said that the applicant:
“Must be unlawfully detained.”
17.	One asks the question what has happened to make lawful a detention unlawful?
18.	Mr Gledhill refers to other cases which he argues support his argument that this court will take action where there is inadequate evidence to justify detention. As already indicated, the basis of his argument is that the medical evidence at present available indicates that there should be an absolute discharge and that detention of the applicant cannot be justified.
19.	It is to be noted that conditional discharge would not avail the applicant as required by her, or at least by her advisers, since by section 73(7) a tribunal may:
“... defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction.”
20.	The section continues in a way which has in the past had relevance:
“... and where by virtue of any such deferment no direction has been given on an application or a reference before the time when the patient’s case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.”
21.	I agree with counsel for the Secretary of State that the effect of this section is that the tribunal can, and should, consider the November 1999 application afresh. That is what it started to do in April.
22.	Whilst I appreciate that the treating psychiatrist considers that there is no reason for the discharge to be conditional rather than absolute the present powers of the Secretary of State by section 42 enable the Secretary of State at this stage to grant a conditional discharge.
23.	Mr Gledhill relies on three reported cases. The first is re: Rutty [1956] 2 QB 109. The question there was whether the court had jurisdiction, the applicant  arguing that she had not been found neglected in which event there was no jurisdiction. The problem before the Court was stated by Hilbery J giving the first judgment. It can be seen at page 119:
“On an application for a writ of habeas corpus this court does not sit as a court of appeal. It will not re‑hear the matters that were to be decided by the judicial authority. The court will, however, admit affidavit evidence to decide whether there was any evidence before the judicial authority such as would justify his finding that he had jurisdiction to deal with the patient and to make an order.”
24.	The situation there was far from the situation here, since here the authority for detention is the order, undoubtedly validly made and validly existing for many years. Mr Gledhill’s argument is not that the order is not sufficient, but that as the tribunal and/or the Secretary of State should discharge the order this Court should treat as done what should be done on 1st June when the tribunal considers the full application, especially, he adds, as the tribunal had recognised their illegality in adjourning earlier and that by now there might well have been the decision which he says is inevitable.
25.	The next authority is re: SC [1996] QB 599. There a patient was detained under section 3 of the 1983 Act on the incorrect, and knowingly incorrect, basis that  his nearest relative had consented to the application, a precedent fact. The Court of Appeal found habeas corpus an appropriate remedy. That case also involved a question of consideration of jurisdiction.
26.	Here, however, the applicant argues that she has been suitable for release some time now, whilst the Secretary of State counters: that begs the very question which the tribunal must decide on 1st June, which, as I have indicated, is the date now fixed for the hearing of the application to the tribunal. Previously, the Secretary of State adds, in 1997 the tribunal determined that she was suitable for conditional discharge. Now, of course, there is fresh evidence and the tribunal, which is best placed to decide and which has been given authority and responsibility by Parliament to decide, must decide whether discharge is justified, and, if so, whether it should be absolute or conditional.
27.	Again, upon analysis I see no support for Mr Gledhill’s argument. I see no reason why the tribunal should not be required to make the decision normally required of them.
28.	The last case dealt with in argument was B v Barking Havering and Brentwood Community Healthcare NHS Trust [1999] 1 FLR 106. Mr Gledhill quoted his own successful argument that Rutty is authority for saying  that habeas corpus is available when there is no evidence to justify the decision to detain.
29.	In some, and certainly those, circumstances this was true, but this does not support an argument that when a case before a tribunal is strong, but no decision has been given, this court can consider the evidence, side line the tribunal, and find that as the tribunal should discharge, the writ of habeas corpus will issue, or at the least leave should be given. Stated in that manner it is evident that the tribunal should make the decision. The detention, as it appears to me, is not illegal because the order has not been discharged.
30.	As it seems to me by makeweight, Mr Gledhill relies on the European Convention on Human Rights. It is sufficient to say at this stage that this, in my judgment, adds nothing. I make no reference to the case reported in the Times this morning.
31.	The question then becomes what ought to happen? Section 14(1) of the Administration of Justice Act 1960 provides that on a criminal application for habeas corpus an order for the release of the person restrained should only be refused by a divisional court. For these purposes I will assume that this is a criminal application, although I should say that I am far from satisfied that in fact this is correct.
32.	It is then clear from section 65(1)(a) in Part 4 of the Access to Justice Act 1999 that the restriction on the single judge is no longer to apply. This provision came into force at the end of two months beginning on the day on which the Act was passed. The Act was passed on 27th July 1999 and came into force long before these proceedings.
33.	Accordingly, this Court would seem to have power to refuse the applicant’s application for leave to issue the writ of habeas corpus, and that is the course which I propose and shall take.
34.	MR GLEDHILL: My Lord, in relation to that last point, can I deal with that first?  The concern that I still have, I accept of course that the statutory regime has changed, we managed to clarify that yesterday, but it does appear that the rules of court ‑‑
35.	MR JUSTICE OWEN: Can I tell you what I have discovered about the rules of court?  Enquiries were made, not by me but happily by ‑‑ and I should say I am grateful for it ‑‑ the clerk in this court, and it appears that the rule committee has not yet reconsidered the old rules. That seems to be the situation. But I take the view that rules are rules and an act of Parliament is an act of Parliament and rules are very much subsidiary. 
36.	MR GLEDHILL: I certainly accept that, and to the extent there was any conflict between the rules and the statute, the statute would clearly take precedence.
37.	The effect of the statutory amendments, in my submission, is to leave the rules unhindered and the rule 54 ‑‑
38.	MR JUSTICE OWEN: I do not see it that way.
39.	MR GLEDHILL: I will not develop the argument further. Your Lordship is clearly entitled to a view. That leaves the issue of appeal.
40.	MR JUSTICE OWEN: Let me say straight away that in my view an appeal would be inappropriate, not because I want to stop you arguing the matter, but because 1st June is very close. If one is to apply, as we shall have to from October onwards, proportionality, then quite clearly there is no way in which one would advise, as I see it, a privately paying applicant to continue, because in fact an appeal would not be heard before that date, almost certainly not in any event.
41.	MR GLEDHILL: That deals with the practicalities of it and that is something I would have to address with the Legal Services Commission, but there is, of course, the issue of the underlying importance of the point, and particularly in public law matters. Certainly the Court of Appeal, and I believe the House of Lords as well, has  said that in matters of public law cases which are purely academic can nevertheless be considered where there is an important point of public law underlying them. It would be simply on the importance of the underlying issue as to whether or not, when the appropriate statutory body has failed to do its duty and failed to make a decision, there should nevertheless be a residual jurisdiction in this Court.
42.	MR JUSTICE OWEN: My answer to that would be, if they failed then appropriately you could bring judicial review proceedings, and that would be the appropriate way to require them to make a decision which they have not yet made. In these circumstances, again, it seems to me, that the habeas corpus proceedings are not appropriate.
43.	MR GLEDHILL: My Lord, I will take that as a refusal in relation to leave, because it is a criminal matter one does not have to certify a point of law.
44.	MR JUSTICE OWEN: I think it is doubtful whether it is a criminal matter, but I am perfectly prepared to deal with it on the basis that it is.
45.	MR GLEDHILL: I am much obliged for that. That just affects whether I can persuade the Legal Services Commission that I go to the Court of Appeal or direct to the House of Lords. I am grateful, my Lord. Might  I seek an order for legal aid taxation in relation to the habeas corpus proceedings, or detailed assessments as it is now?
46.	MR JUSTICE OWEN: Yes, you can have it as long as the certificate has been filed.
47.	MR GLEDHILL: It is not in the file at present, but I undertake it will be.
48.	MR JUSTICE OWEN: As soon as it arrives you shall have it.
49.	MR GLEDHILL: In relation to the other matter, the judicial review matter, there was an issue ‑‑ the issue of costs, as it were, was resolved in the course of consent order.
50.	MR JUSTICE OWEN: So I understood.
51.	MR GLEDHILL: The only point is that I cannot recall seeing in the consent order whether there was a legal aid detailed assessment order in that. Sometimes it is necessary to have both.
52.	MR JUSTICE OWEN: Nor can I. Can I deal with it in this way?  If it is not dealt with because obviously the parties were dealing with the issues between them ‑‑ and this is an issue between you and someone else ‑‑ if it is not dealt with in that, you will certainly have, upon a certificate being produced, a similar order.
53.	MR GLEDHILL: I am obliged.