Pendlebury, R (on the application of) v Secretary of State for Justice

Under section 50 of the Mental Health Act 1983, the Secretary of State retains the ultimate discretion whether to issue a remission warrant. A Tribunal’s notification or findings do not bind the Secretary of State, and do not confer a veto over remission.

The stringent Brandenburg approach to executive action inconsistent with a Tribunal’s decision applies where the Tribunal is the primary decision-maker on discharge or liberty. It does not govern section 50 remission, where the statutory decision rests with the Secretary of State. Nevertheless, a decision-maker may need a good reason to depart from an independent Tribunal’s adjudicative findings. In this case, conscientious reconsideration, further clinical opinions, risk assessment and adequate reasons made the warrant lawful.

The claimant was a tariff-expired life prisoner detained in Rampton Hospital after transfer under the Mental Health Act 1983. Following a First-tier Tribunal hearing, the Tribunal concluded that continued hospital detention and treatment were appropriate and urged the Secretary of State not to issue a remission warrant.

The responsible clinician maintained that the statutory conditions for remission were satisfied. Further clinical consideration and a peer review were undertaken. The Secretary of State then issued a warrant under section 50(1), directing the claimant’s return to prison. The claimant sought judicial review, alleging unlawfulness, irrationality and breaches of ECHR Articles 3 and 5. The central issues were the effect of the Tribunal’s findings and the adequacy of the Secretary of State’s reconsideration and reasons.

1. Claim dismissed. The warrant, the reasons for it and the preceding process were lawful. Judicial review could not be used to substitute the court’s assessment of the competing clinical merits.

2. The Tribunal had no binding power to recommend or determine remission. It was one of the bodies capable of notifying the Secretary of State that the statutory preconditions existed. The Secretary of State retained the ultimate decision and the Tribunal had no power to veto a warrant based on another qualifying notification.

3. The approach identified in Brandenburg [2003] UKHL 58 was confined to cases where a Tribunal acts as the primary decision-maker on what should happen to an individual, particularly discharge and liberty. Section 50 remission was materially different because the statutory decision belonged to the Secretary of State. IT [2008] EWHC 1707 did not require a different result.

4. Even if a Secretary of State must have a good reason before departing from an independent Tribunal’s adjudicative findings, that requirement was satisfied. The responsible clinician reconsidered the Tribunal’s determination, maintained his clinical view with reasons, and obtained a further opinion and peer review. The Secretary of State considered the Tribunal’s assessment, the clinical evidence, treatment availability, transfer risks and post-transfer support.

5. The court applied the three questions identified in IR [2003] EWHC 3022 (Admin): whether hospital treatment remained required or effective; whether the claimant’s condition warranted compulsory confinement in a suitable therapeutic environment other than prison; and whether prison treatment was more likely than not to reach the threshold of inhuman or degrading treatment under ECHR Article 3. The materials adequately answered each question. The responsible clinician’s clinical judgment was central, and the Secretary of State had objective justification for remission.

6. The claim was dismissed. Permission to appeal was refused. Costs were ordered against the claimant on the usual legally aided terms.