NM (Algeria) & Ors, R (On the Application Of) v Secretary of State for the Home Department

Where subsequent events make an application for interim relief unnecessary, the Court of Appeal should not ordinarily convene a full court merely to give general guidance on a fact-sensitive issue. Questions concerning detention, refusal of food or liquid, hospital treatment and mental health should be decided on an expedited appeal based on the facts existing when the issue remains live. An unreviewed High Court judgment has the authority of a first-instance decision only. The possibility of similar future cases does not, without more, justify an appeal whose practical subject matter has disappeared.

These conjoined appeals arose from applications for interim relief in proceedings concerning individuals in detention. The issues included the interaction between objection to taking food and liquid, unwillingness to receive hospital treatment, and mental health. Stewart J had given a High Court judgment, but recent events meant that both applications for interim relief were no longer necessary.

The appellant invited the Court of Appeal to direct that a full court consider the judgment because similar cases were pending and guidance would be useful. The central question was whether the court should use an appeal concerning no longer-live interim relief to settle general principles on a fact-sensitive issue.

1. Disposition. Recent events had made both applications for interim relief unnecessary. The only live issue was whether the Court of Appeal should direct a hearing before a full court to consider Stewart J’s judgment.
2. Fact-sensitive issues. The court declined to give general guidance on the proposed interplay between detention, refusal of food and liquid, unwillingness to receive hospital treatment and mental health. Cases of this kind depend heavily on the individual’s physical and mental condition and the facts existing at the relevant time.
3. Appropriate appellate procedure. If a similar case arose, the proper course would be an expedited hearing of a genuine appeal on the facts then before the court. It would be inappropriate to decide principles by reference to facts that had become unnecessary to examine.
4. Status of the High Court judgment. Stewart J’s judgment had the authority of an unreviewed first-instance High Court decision. The court saw no good reason to hold an appeal merely to confirm or undermine that authority.
5. Future cases. If further cases arose, the court would seek to ensure that an appropriately constituted panel heard the appeal as soon as practicable. No direction for a full Court of Appeal hearing was made.

1. Court of Appeal (Civil Division): The court declined to direct a full-court hearing because the interim-relief applications had become unnecessary and the issues were highly fact sensitive. [2013] EWCA Civ 1785.
2. High Court of Justice, Queen’s Bench Division: Stewart J had given the judgment under appeal. Its citation is not stated in the judgment.