B v Secretary of State for the Home Department

Imprisonment of a person with mental illness will engage article 3 only in the exceptionally rare case where proper medical evidence shows that imprisonment itself would create a real risk of inhuman or degrading treatment. A risk of psychiatric relapse if the prisoner stops taking medication does not meet that threshold where arrangements exist for hospital treatment if it becomes necessary.

A custodial sentence imposed consistently with article 6 will ordinarily be a proportionate interference with private life under article 8 unless it reaches the article 3 threshold. In an appeal from committal for contempt, an evidential error does not require the sentence to be set aside if the outcome remains lawful and appropriate.

B, a non-citizen whom the Secretary of State wished to deport to Algeria, refused to disclose his true identity despite an order of the Special Immigration Appeals Commission (SIAC). His refusal prevented Algeria from accepting him. SIAC found that he had deliberately and contumeliously disobeyed its order and, on 21 November 2010, imposed four months’ imprisonment for contempt, suspended pending appeal.

B appealed on grounds based on the risk that imprisonment would worsen his serious mental illness, articles 3 and 8 of the Convention, delay in bringing the proceedings, and the length of sentence. The central issue was whether the committal order should stand despite SIAC’s flawed evaluation of parts of the psychiatric evidence.

By a majority (Longmore and Laws LJJ), appeal dismissed. Etherton LJ dissented.

1. The majority accepted that SIAC could properly be criticised for concluding that it could be confident B would not relapse into paranoid psychosis if imprisoned. SIAC had wrongly preferred an understanding of Dr Thompson’s evidence which later proved incorrect.
2. That error did not establish a breach of article 3. Applying R v Qazi and Hussain [2010] EWCA Crim 2579, a sentencing court need inquire into article 3 only where medical evidence shows that imprisonment ipso facto would create a real risk of an article 3 breach. The evidence showed a risk of relapse if B ceased medication, but not that imprisonment itself would amount to inhuman or degrading treatment. Hospital transfer and treatment were available if required.
3. Article 8 added nothing. A sentence imposed with article 6 safeguards was a proportionate interference with private life unless it was inhuman or degrading within article 3.
4. Longmore LJ considered the applicable question to be whether the four-month sentence was excessive, allowing for SIAC’s wide sentencing discretion. Laws LJ emphasised the broad appellate power under section 13 of the Administration of Justice Act 1960 and the need to consider the outcome. The contempt was grave and deliberate, the delay reflected efforts to secure compliance by other means, and four months was a lenient rather than excessive sentence.

Etherton LJ would have allowed the appeal. In his view, SIAC’s reliance on a false evidential premise was fatal, and the committal application should have been remitted to SIAC for fresh determination on current medical evidence.

• Court of Appeal (Civil Division) — dismissed B’s appeal by a majority from the committal order: [2011] EWCA Civ 828.
• Special Immigration Appeals Commission — on 21 November 2010 found deliberate and contumelious disobedience of its identity-disclosure order and imposed four months’ imprisonment, suspended pending appeal.