Rayner & Anor v Secretary of State for the Home Department & Ors

Article 5(4) is compatible with a statutory scheme under which the Secretary of State must automatically refer a recalled restricted patient to a tribunal, provided referral is made immediately unless the circumstances positively require delay. The patient need not have a separate initiating application where the reference gives equivalent procedural rights and independent access to judicial review. The statutory referral period is an outer limit, not permission to wait. Speediness is assessed factually, having regard to all material circumstances. A failure by the Secretary of State to refer promptly may violate Article 5(4) in the individual case.

Two judicial review claims concerned restricted patients recalled to hospital after conditional discharge under the Mental Health Act 1983. The claimants challenged the compatibility of section 75(1), together with rule 29(cc) of the Mental Health Review Tribunal Rules 1983, with Article 5(4), and alleged unlawful delay on the facts.

In Rayner’s case, the Secretary of State referred the case seven weeks late, while communications between the tribunal and hospital led to further delay and an adjournment. In Marsh’s case, the reference was made nine weeks after recall and permission was sought after substantial delay. The central questions were whether the statutory scheme was incompatible with Article 5(4), whether the individual delays violated the right to a speedy hearing, and whether Marsh should receive permission to proceed.

1. Rayner: tribunal and hospital claims. Rule 29(cc) imposed a two-stage duty on the tribunal: first, to fix the hearing date, time and place through consultation; secondly, to give written notice of those matters. The telephone call was sufficient for fixing but not, by itself, for giving notice. Eleven days between receipt of the reference and sending notice did not itself establish an actionable breach. Rule 29(cc)(i) contemplated a hearing within eight weeks, but rule 16 permitted adjournments and there was no absolute duty to complete the hearing within that period.
2. The tribunal’s relisting was a rational and proportionate response to the hospital’s evidence that it had not received the notices. The resulting delay did not establish a Convention violation or systemic inadequacy. The hospital was not responsible for preparing reports before written notice under rules 29(b) and 6(1), and no case was proved against either the tribunal or the Trust.
3. Compatibility of the scheme. Section 75(1) and the rules could be read and operated compatibly with Article 5(4). An automatic reference under section 75 was an independent legal device giving the detainee access to a judicial tribunal. The absence of an express power for the patient personally to initiate proceedings was not fatal because the reference was treated as if made by the patient and the patient had the same rights within it. The statutory one-month period was an outer limit, not a period authorising routine delay. The Secretary of State should normally refer immediately, unless the circumstances positively required otherwise.
4. Rayner’s individual claim. The Secretary of State acted unlawfully by failing to refer within one month and violated Article 5(4). On the evidence, referral should have occurred by 20 June 2005; the delay until 8 August 2005 caused a seven-week violation. The later postal and hospital delays did not constitute a separate violation. The damages issue was adjourned for determination or negotiation.
5. Marsh. The compatibility challenge would fail. Judicial review was the appropriate procedure, and the stricter judicial-review time limit could not be avoided by characterising the claim as one for damages under sections 7(1)(a) and 7(5)(a) of the Human Rights Act 1998. Permission was refused for delay. Rayner’s claims were dismissed except for the damages claim against the Secretary of State, and Marsh’s application was refused.

First-instance judicial review proceedings in the Administrative Court. The judgment records no earlier decision in the same proceedings.