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

The Secretary of State’s consent to restricted patients taking unescorted community leave is a distinct decision from a tribunal’s decision on conditional discharge. The tribunal’s conclusions must be taken into account, but they do not dictate the Secretary of State’s decision or the weight given to them. The Secretary of State may prefer the responsible clinician’s assessment, consider the patient’s engagement with further treatment, and require further therapeutic work before granting leave. A refusal is lawful where it is rationally based on the evidence of risk, takes relevant considerations into account, and is proportionate to protecting the patient and the public.

The claimant was serving concurrent life sentences for two murders and was detained in hospital under sections 47 and 49 of the Mental Health Act 1983. He had regular unescorted leave in hospital grounds but sought unescorted leave in the wider community.

The Secretary of State refused consent under section 41(3)(c)(i), despite professional recommendations and a First-tier Tribunal decision that the claimant would have been entitled to conditional discharge if subject to a restriction order. The claimant sought judicial review, alleging public law errors and breaches of Articles 5(1) and 5(4) of the Convention. The central issue was whether the refusals were unlawful, irrational or disproportionate.

1. Claim dismissed. The Secretary of State’s refusals of consent to unescorted community leave were lawful, rational in public law terms and proportionate.
2. The First-tier Tribunal’s decision on conditional discharge and the Secretary of State’s decision on consent to leave addressed legally distinct matters. The Secretary of State was required to take the Tribunal’s decision into account, but was entitled to determine the weight to give it. The Tribunal’s decision did not dictate the outcome of the later application under section 41(3)(c)(i) of the Mental Health Act 1983.
3. The Secretary of State was entitled to prefer the evidence of Dr H, the responsible clinician, over the contrary opinion of Dr K. Dr H and the hospital team considered that further psychological work was required concerning interpersonal violence, relationships and the index offence. The Secretary of State could rationally require that work before considering a further application more favourably.
4. The evidence supported the conclusion that the claimant continued to present a serious and unpredictable risk, particularly in the context of relationships or stressful situations. The absence of previous unescorted community leave was only one part of the offender manager’s reasoning against release and did not make access to the Parole Board under Article 5(4) ineffective.
5. The Secretary of State had considered the relevant evidence. The second report from Dr K largely repeated his earlier report and added no fresh assessment of the claimant or change in circumstances. Its omission did not flaw the decision.

The court also directed limited anonymity for the hospital and staff, while rejecting anonymity for the claimant because the public had a right to know the result of the judicial review.

The judgment was a first-instance judicial review decision. It records earlier judicial review proceedings concerning the claimant’s tariff and a subsequent tariff determination, but gives no citation for those proceedings.