Graham v East London and City Mental Health NHS Trust

A court may intervene to restrain a public authority from abusing statutory powers and unlawfully depriving a person of liberty. The applicant must provide cogent evidence that wrongful action is in progress or planned. The court cannot act on speculation or assume that undisclosed records will support the allegation. Safeguards under the Mental Health Act, including discharge provisions, and habeas corpus generally address detention that has occurred; they do not remove the evidential threshold for preventative relief.

Miss Graham sought judicial review against local public authorities after employees allegedly threatened that she would be detained under the Mental Health Act unless she accepted medication. Her claim sought protection against interference with her liberty and damages. She was later detained but released before a habeas corpus application was heard. Sullivan J dismissed her renewed application for permission to apply for judicial review and for interim relief. The Court of Appeal considered her out-of-time application for permission to appeal and whether the evidence justified preventative intervention.

1. Application refused. The application for permission to appeal, made out of time, was refused. Nothing that the Court of Appeal could do would advance the position reached before Sullivan J.
2. The court recognised that it could intervene before detention where convincing evidence showed that a public authority proposed to abuse its powers and thereby deprive a person of liberty. Such intervention requires cogent evidence of unlawful intent or of wrongful action in progress or being planned.
3. The court could not decide the matter on the assumption that undisclosed files contained material supporting the allegation. The possibility that the files might assist the applicant was insufficient. The court could not act on speculation.
4. The safeguards within the Mental Health Act, including provisions for discharge, and the remedy of habeas corpus did not exclude preventative intervention. They generally presupposed that detention had already occurred, so an appropriate pre-emptive case remained possible if the necessary evidence existed.
5. Article 10 of the EC Directive 95/46/EC emphasised the protection of fundamental rights and privacy in the processing of personal data. It did not advance the present application because the court lacked evidence establishing that the authorities’ conduct was unlawful or that the files would support the claim.

The evidential threshold was not met on the material before the court.

• Court of Appeal (Civil Division): [2004] EWCA Civ 690 (26 May 2004). Sedley LJ refused the out-of-time application for permission to appeal.
• High Court, Administrative Court: Sullivan J dismissed the renewed application for permission to apply for judicial review and for interim relief on 17 March 2004.