Vowles, R (on the application of) v Secretary of State for Justice & Anor

Article 5(4) permits a State to assign different questions concerning detention to differently constituted judicial bodies where the questions arise under distinct statutory regimes. However, speediness must be assessed across the whole process, not separately at each stage.

In sentencing an offender with mental disorder, psychiatric evidence does not determine the disposal. The judge must assess treatment, culpability, punishment, public protection, release arrangements and other available methods. Where appropriate, a Mental Health Act 1983 hospital direction under section 45A should be considered before a hospital order under sections 37 and 41.

The judgment determined six criminal appeals against indeterminate sentences and a related civil appeal by Vowles concerning delay in determining her release application. The criminal appellants relied on fresh psychiatric evidence and sought substitution of hospital and restriction orders under the Mental Health Act 1983.

The civil appeal followed Irwin J’s dismissal of Vowles’s judicial review claim, reported at [2014] EWHC 1495 Admin. The principal issues were the correct sentencing approach where mental disorder and public protection concerns coexist, whether release by both the Mental Health Review Tribunal and the Parole Board was compatible with Article 5(4), and whether the overall process had been sufficiently speedy.

1. Civil appeal. The court held that Article 5(4) did not require one judicial body to determine every aspect of detention. The Mental Health Review Tribunal and the Parole Board applied different statutory tests addressing different bases of detention. Their separate jurisdiction was therefore compatible with the Convention. Article 14 added nothing because the distinction was justified.
2. Speediness had to be assessed across the whole process. The Secretary of State had to refer the matter promptly, and the Parole Board had to begin active case management on referral rather than waiting for a complete dossier. Despite serious administrative failures, the necessary period of assessment at a suitable hospital meant that release could not lawfully have been determined materially earlier. Permission was granted, but the civil appeal was dismissed.
3. Sentencing guidance. Where the medical conditions in section 37(2)(a) of the Mental Health Act 1983 were met, the judge still had to decide whether a hospital order was the most suitable disposal under section 37(2)(b). Relevant matters included the need for treatment, the connection between disorder and offending, punishment, public protection, release and post-release regimes, and other available methods. Psychiatric agreement alone created no presumption in favour of a hospital order.
4. The court directed that section 45A should be considered first where a hospital direction could appropriately address the disorder. If that was unsuitable, the judge should consider sections 37 and 41, including all matters within section 37(2)(b), before considering transfer under section 47. Interim hospital orders should be used only where there was clear necessity. Risk evaluation was not governed by a conventional burden of proof.
5. Criminal appeals. The appeals of Vowles, Barnes and Irving were dismissed. The sentences of Coleman, Odiowei and McDougall were quashed and replaced with hospital and restriction orders under sections 37 and 41. The court emphasised that mental illness was not a passport to medical disposal, although a causal link with offending was a legitimate factor even though it was not an essential statutory requirement.

• Court of Appeal (Civil and Criminal Divisions) [2015] EWCA Civ 56: permission granted in the civil appeal; the civil appeal dismissed. Three criminal appeals dismissed and three allowed, with hospital and restriction orders substituted in the allowed appeals.
• Administrative Court: Irwin J dismissed Vowles’s judicial review claim concerning delay, in the decision reported at [2014] EWHC 1495 Admin.
• Crown Courts: the criminal appellants had originally received indeterminate sentences, including sentences of imprisonment for public protection and life imprisonment.