LV, R (On the Application Of) v Secretary of State for Justice & Anor

Article 5(4) does not require successive reviews of detention to be conducted by a single judicial body. Separate specialist tribunals are permissible, provided the overall process determines lawfulness speedily. The assessment is fact-sensitive and includes the complexity of the proceedings, the conduct of the authorities and applicant, and what is at stake.

Time reasonably required for clinical observation and risk assessment is not, without more, unlawful delay. A Parole Board may need to assess risks arising from offending history and wider circumstances, as well as risks connected with mental disorder.

The claimant was serving an indeterminate sentence after conviction for arson. She was transferred from prison to hospital under sections 47 and 49 of the Mental Health Act 1983. The Mental Health Tribunal notified the Secretary of State that she would have been entitled to conditional discharge if subject to a restriction order and recommended continued hospital detention pending suitable arrangements.

The Parole Board subsequently declined to direct release. The claimant sought judicial review, alleging that the period of almost 22 months between her application to the Tribunal and the Parole Board’s decision breached Article 5(4). She argued that the two-stage process involved repeated consideration of the same issue and lacked adequate judicial supervision.

1. Claim dismissed. The two-stage process involving the Mental Health Tribunal and the Parole Board was not inherently incompatible with Article 5(4). Separate specialist courts may determine different aspects of detention, provided there is no undue delay.
2. Speediness required an overall assessment of the proceedings, including their complexity, the conduct of the authorities and claimant, and what was at stake. A breach could theoretically occur even where earlier release was impossible, but the practical circumstances remained relevant.
3. The Tribunal and Parole Board were not deciding the same issue twice. For a prisoner transferred to hospital under transfer and restriction directions, criminal responsibility for the original offending remained. The Parole Board therefore had to consider wider offending and public-protection risks, as well as mental disorder.
4. The First Defendant applied the wrong policy after receiving the Tribunal’s decision. The correct policy contemplated an oral hearing in about 13 weeks. That error might have caused significant delay in another case, but did not determine the timetable here.
5. The case required clinical observation and assessment at Plas Coch before a reliable decision on community risk could be made. That period could not properly be attributed to the defendants. The overall process was therefore speedy within Article 5(4), despite unexplained delays at particular stages.