Secretary Of State For Home Department, R (on the application of) v Mental Health Review Tribunal & Anor

An extension of time for a renewed application for permission to appeal is inappropriate where the delay is substantial and unexplained. The position is strengthened where the proposed appellant has instead participated in substantive proceedings dealing with the underlying issue. The court may refuse an extension without determining difficult underlying grounds of appeal where the procedural delay is decisive. The fact that an arguable challenge concerns reliance on legislation said to be incompatible with Convention rights does not, without adequate explanation for delay, justify extending time.

Mr Grey, a detained mental patient, renewed an application for permission to appeal against a decision of the Divisional Court dated 29 October 2001. The application also required an extension of time. Dyson LJ refused permission on 25 January 2002, finding no real prospect of success. Mr Grey subsequently participated in a further hearing before the Mental Health Review Tribunal, which on 8 March 2002 decided that he had a psychopathic disorder and should remain detained. The renewed application was made on 10 May 2002, without evidence explaining the delay. The central issue was whether time should nevertheless be extended because the proposed appeal raised a challenge concerning reliance on old section 73 of the Mental Health Act.

1. Application for extension and permission refused. The renewed application was made more than three months after Dyson LJ’s refusal and about two months after the further tribunal hearing. No evidence explained the delay.
2. The applicant had chosen to engage in substantive proceedings before the Mental Health Review Tribunal concerning the same underlying application. The Tribunal had since given a fully reasoned decision that he should continue to be detained. In those circumstances, extending time for an appeal against the earlier Divisional Court decision was not appropriate.
3. The proposed grounds concerned an argument that old section 73 of the Mental Health Act had been declared non-Convention-compliant and that the Home Secretary had abused the process of the court by relying on it in judicial review proceedings. Lord Justice Schiemann regarded the argument as extremely difficult to run in the circumstances, but did not determine its substantive merits because the unexplained delay was decisive.
4. The application was refused. Costs were to be subject to detailed assessment.

• Court of Appeal (Civil Division): The renewed application for an extension of time and permission to appeal was refused.
• Administrative Court, Divisional Court: Decision made on 29 October 2001; the judgment is described as having quashed the earlier tribunal application.
• Permission stage: Dyson LJ refused permission on 25 January 2002, finding no real prospect of success.