D v Secretary of State for the Home Department [2002] EWHC 2805 (Admin)

Mental Health – restricted patient – discretionary lifers panel – human rights

D was sentenced to life imprisonment, with a tariff of six years which expired in 1995. After conviction, the Home Secretary made a transfer direction under s47 Mental Health Act 1983 and D was transferred to Ashworth hospital. A restriction order under s49 of the Act was also made. D’s application in 2002 to the Mental Health Review Tribunal was unsuccessful as the MHRT found that he continued to suffer from a psychopathic disorder and mental illness of a nature and degree conducive with the statutory criteria for his detention in a mental hospital. Since D was a discretionary life prisoner who had been made subject of a transfer and restriction order he was detained under both regimes, meaning that his case for discharge from detention had to be considered by the MHRT and the Parole Board. However, because he was detained under the MHA, his case had not been considered by the Discretionary Lifers Panel of the Board. It was common ground that, as the interpretation of the relevant statutes to date meant that if a MHRT decided that a claimant was no longer detainable under the MHA then the Secretary of State’s intervention was required for the case to be referred to the Parole Board. D submitted: (i) that under that practice his applications to the MHRT and the Parole Board had to be made consecutively; and (ii) reference to the Parole Board was at the Secretary of State’s discretion; thereby depriving him of an unqualified right to such a review and to have the lawfulness of his detention decided speedily by an independent tribunal as required by art 5(4) of the Convention.

The Court found that under the law as presently understood and applied, a discretionary life prisoner who had served the minimum period of his detention but who remained compulsorily detained under the MHA had no statutory right to apply to the Parole Board, or to require the Secretary of State to refer his case to the Board for a review of the lawfulness of his continued detention. The issue to be determined therefore was whether the Secretary of State’s policy satisfied the requirements of art 5(4).

If an act of the executive was required for a person to have access to a court, that person was not entitled to take proceedings to test the lawfulness of his detention unless the executive was under a legal duty to grant that access. In respect of discretionary life prisoners, the secretary of state had a discretionary power vas opposed to a legal duty. The word ‘entitled’ in art 5(4) was not satisfied unless there was a legal right of access to a court that could determine the lawfulness of detention and direct the prisoner’s release if the detention was not justified. The continued detention of discretionary life prisoners who had served the penal part of their sentence should not depend on the exercise of a discretionary power by the executive branch of government. In these circumstances, there had to be a declaration of incompatibility, and it was not possible to interpret the relevant legislation so as to avoid that incompatibility.

As to the speediness of the review, the Court held that unless there was objective justification for the successive and separate applications to two tribunals, the process could itself be inconsistent with the requirement of a speedy decision in art 5(4). However, the circumstances of the individual case must be taken into account. It was therefore inappropriate to make any declaration in respect of D’s submissions regarding the impossibility of a speedy decision on the lawfulness of his continued detention. If D considered that he had suffered undue delay in the review of the lawfulness of his continued detention, the remedy was to apply to court for judicial review at that stage.

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