Juncal, R (on the application of) v Secretary of State for the Home Department & Ors

The common law protects citizens from arbitrary detention. However, detention following a finding that an accused person is unfit to plead is not arbitrary merely because the court has not determined whether the accused committed the alleged acts. The relevant procedure is lawful where the statutory criteria are satisfied, the court is properly informed by objective medical evidence, and detention is justified by the nature and degree of the mental disorder. General enabling words cannot authorise removal of fundamental rights, but such rights may be removed by express language or necessary implication. Convention rights under the Human Rights Act 1998 cannot ordinarily be used to challenge a detention ordered before that Act came into force, even where the detention continues.

The claimant had been charged in Northern Ireland with unlawful wounding. In December 1997 a Belfast Crown Court jury found him unfit to be tried, apparently because of mental illness, and the court made a hospital order under the Mental Health (Northern Ireland) Order 1986. He was subsequently transferred to Scotland and then England under statutory transfer provisions and remained detained in hospital.

He sought judicial review, contending that the original order and his continuing detention were unlawful because the court had not investigated whether he had committed the acts underlying the charge. He also relied on common-law rights and Articles 5, 6, 7, 8 and 14 of the Convention.

1. Lawfulness of the original order. The claimant had a common-law or constitutional right not to be detained arbitrarily. The principle of legality therefore applied to the subordinate legislation made under the Northern Ireland Act 1974. General words authorising the making of laws for Northern Ireland would not, without express language or necessary implication, authorise removal of a fundamental right.
2. Article 49 of the Mental Health (Northern Ireland) Order 1986 did not authorise arbitrary detention. It required a person to be charged with an indictable offence and to be found unfit to be tried. The court had to be properly informed before those conditions were met. Article 49(3) also enabled the court to postpone consideration of fitness where the prosecution case appeared weak, thereby protecting an accused from a mandatory hospital order where acquittal was likely.
3. The absence of an investigation into whether the accused had committed the alleged acts did not itself make detention arbitrary. Applying Winterwerp v The Netherlands [1979] 2 EHRR 387, detention was justified where objective medical evidence established a true mental disorder of a kind or degree warranting compulsory confinement. The available evidence showed that the claimant suffered from chronic paranoid schizophrenia and required hospitalisation.
4. The statutory transfer provisions were validly applied. “Corresponding” legislation meant legislation similar or analogous in character or function, not legislation exactly corresponding in every respect. The statutory chain therefore lawfully authorised the claimant’s transfers between Northern Ireland, Scotland and England.
5. The Human Rights Act 1998 did not permit the claimant to challenge the 1997 order under Convention rights. Following R v Lambert [2002] 2 AC 545 and the authorities following it, the critical date was when the impugned process and detention began, before the Act came into force. The Article 5 claim therefore failed, and the claims under Articles 6, 7, 8 and 14 also failed. The challenge was dismissed.