P, R (On the Application Of) v Secretary of State for the Home Department

Article 5.4 does not require one tribunal to review every legal basis for a person’s detention. Different specialist courts may review different heads of detention, provided the review is lawful, effective and speedy.

Successive hearings before a mental health review tribunal and a Discretionary Lifer Panel are not inherently incompatible with the Convention. Any delay must be assessed on the facts of the individual case. Evidence of administrative difficulty is relevant only where the Convention leaves room for interpretation, or where domestic legislation is being construed.

The claimant was a discretionary life prisoner detained at Broadmoor under concurrent life sentences and transfer and restriction directions under the Mental Health Act 1983. His tariff had expired, but under the domestic interpretation of the legislation he could not apply to the Parole Board unless a mental health review tribunal first notified the Secretary of State that he was entitled to discharge.

Relying principally on Article 5.4 of the European Convention on Human Rights, he argued that the legislation required a single combined hearing, or at least concurrent hearings, before a mental health review tribunal and a Discretionary Lifer Panel. He also challenged the possible delay caused by successive hearings and the continuing restrictions applicable to him. The central issue was whether the Convention required one court to determine all applicable legal bases for detention.

1. The claim was dismissed. The court adhered to its earlier decision in R (D) v Secretary of State for the Home Department, which had held that section 34 of the Criminal Justice Act 1991 did not confer an immediate Parole Board right on a prisoner also detained under the Mental Health Act 1983. The later evidence reinforced, rather than undermined, that conclusion.
2. Article 5.4 applies to each head of detention in Article 5.1, but it does not require a single court or hearing to determine them all. Member States may use differently qualified specialist courts for different detention regimes, provided there is no undue delay or other Convention breach. X v UK supported that flexible approach.
3. A person detained under more than one lawful head of detention need not obtain a review under every head before detention can continue. If detention under one head remains lawful, a court reviewing another head could not order release under Article 5.4.
4. The functions of a mental health review tribunal and a Discretionary Lifer Panel are materially different. The tribunal examines mental disorder, treatment and risks to the patient or others. The Parole Board examines risk to the public, whatever its cause, under section 34(4)(b) of the Criminal Justice Act 1991. Their different burdens, evidence and review intervals did not make separate hearings unlawful.
5. Successive hearings do not necessarily breach the requirement of a speedy review. The question is fact-sensitive. A 24-week period could not be assessed in the abstract, and the relevant investigations may properly begin before the first hearing where practicable.
6. Restrictions continuing after a tribunal found that the claimant was dangerous only to himself concerned the conditions of detention, not its existence. Following Ashingdane v UK, Article 5 was not thereby engaged in the manner alleged. The hypothetical situation also did not justify requiring a further Parole Board review.
7. The court declined to determine an unpleaded challenge to the 90-day period in section 74(2)(b) of the Mental Health Act 1983. No damages inquiry would have been ordered without evidence of significant pecuniary or non-pecuniary loss.

The judgment records no earlier appellate decision in this litigation. Permission to appeal was refused by Stanley Burnton J, with the claimant directed to seek permission from the Court of Appeal. There was no application for costs.