Secretary of State for Justice v Rayner

Article 5(4) requires the lawfulness of detention to be determined speedily, judged in all the circumstances. A statutory one-month limit for referring a recalled restricted patient to a tribunal is an outer limit, not a period which the referring authority may routinely take. The authority must proceed with reasonable despatch. A reference will normally be required within a few days.

Although an automatic reference procedure may not alone provide the direct access now required by Article 5(4), the domestic scheme is compliant when combined with judicial review and habeas corpus. Those remedies enable the patient to enforce the reference duty or challenge detention on its merits and obtain an effective order for release.

A restricted patient conditionally discharged under the Mental Health Act 1983 was recalled to hospital. Section 75(1) required the Secretary of State to refer his case to a Mental Health Review Tribunal within one month. The reference was made almost two months after his compulsory detention began, following an admitted oversight. The tribunal subsequently directed his conditional discharge.

Holman J held in [2007] EWHC 1028 (Admin), also reported at (2007) 10 CCLR 464, that the Secretary of State had breached section 75(1) and article 5(4), but that the statutory scheme was compatible with the Convention. The Secretary of State appealed against the judge’s formulation of the required speed. The patient cross-appealed on the ground that he lacked the direct right to institute tribunal proceedings during the first six months after recall.

1. Appeal and cross-appeal dismissed. The Secretary of State’s delay breached both section 75(1) of the Mental Health Act 1983 and article 5(4). The Administrative Court’s conclusion that the reference should have been made within approximately one week was not disturbed. Keene LJ gave the judgment, with which Black J and Ward LJ agreed.

2. Article 5(4) requires the court’s determination, rather than merely the commencement of proceedings, to be achieved speedily. Compliance depends on all the circumstances. Domestic courts should not prescribe a universally applicable numerical period. The governing inquiry is whether the matter proceeded with reasonable despatch.

3. Section 75(1)’s one-month period is an outer statutory limit. It does not entitle the Secretary of State routinely to wait for one month. Because liberty is at stake and a recalled patient cannot apply directly to the tribunal during the first six months, the Secretary of State must act energetically and rapidly. A reference would normally be expected within days, and ordinarily within a few days, of the patient’s return to hospital. The word “immediate” was too stringent because necessary checks may take some time and article 5(4)’s requirement of speed is less urgent than article 5(3)’s requirement of promptness.

4. Section 75(1) could be operated compatibly with article 5(4). Section 3(1) of the Human Rights Act 1998 required compatible interpretation where possible, while section 6 required the Secretary of State to exercise the power compatibly. No declaration of incompatibility was warranted.

5. Recent Strasbourg decisions placed increased emphasis on a detained person’s independent right to initiate review. Section 75 might therefore have been insufficient if considered alone. English law, however, supplied additional safeguards. The patient could seek judicial review to compel the Secretary of State to perform the mandatory reference duty. The patient could also challenge detention directly on its substantive merits by judicial review or habeas corpus.

6. Judicial review could provide the rigorous merits examination required by article 5(4), including oral evidence and cross-examination where necessary. The Administrative Court could make a mandatory order requiring release, including conditional discharge where appropriate. The combined statutory and court procedures therefore gave direct access to an effective and speedy remedy.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 176, the court unanimously dismissed the Secretary of State’s appeal and the patient’s cross-appeal.
2. Administrative Court: Holman J held in [2007] EWHC 1028 (Admin), reported at (2007) 10 CCLR 464, that the delayed reference breached section 75(1) of the Mental Health Act 1983 and article 5(4), but that the statutory scheme was compatible with the Convention.