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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A-R, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 1999 (Admin) (23 July 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/1999.html Cite as: [2004] EWHC 1999 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Friday, 23rd July 2004

1. MR JUSTICE GAGE: The claimant in this case is a foreign national detained under the Immigration Act 1971, following the issue of a certificate by the Home Secretary under the Anti-Terrorism, Crime and Security Act 2001, section 21, to the effect that the Secretary of State reasonably believed that the claimant's presence in the United Kingdom was a risk to national security and reasonably suspected that he is a terrorist. His appeal to SIAC against the Home Secretary's certificate was rejected on 29th October 2003.
2. The claimant was first detained in Her Majesty's Prison Belmarsh on 19th December 2001. While in Belmarsh, he exhibited symptoms of what was considered to be mental illness and in due course, following examination by two consultant psychiatrists, one of whom was a forensic psychiatrist, he was transferred to Broadmoor Hospital pursuant to section 48 of the Mental Health Act 1983. In addition, the Secretary of State made a restriction direction under section 49 of the Mental Health Act. He was transferred on 24th July 2002.
3. This claim for judicial review challenges the decision of the Mental Health Review Tribunal, which refused to make statutory recommendations to the Secretary of State under sections 74(1)(a) and (b) of the Mental Health Act, that the claimant be discharged from being detained under sections 48 and 49, and, if not discharged, that he should remain detained in hospital rather than be returned to prison.
4. The grounds are that the Tribunal misdirected itself in its construction and application of section 74(1) of the Mental Health Act. The issues in this case centre on the relationship between the provisions of the Mental Health Act, as they relate to Mental Health Review Tribunals, when considering a patient who is a subject of certification under section 21 of the Anti-terrorism, Crime and Security Act.
5. The decision of the Mental Health Review Tribunal in this case was expressed in the following terms:

"In the opinion of the Tribunal, if subject to a Restriction Order under section 41 Mental Health Act 1983, the patient

"(a) Would not be entitled to be discharged."

6. The two remaining options for absolute discharge and conditional discharge have been deleted. The legal grounds for the Tribunal's decision were expressed as:

"(a) The Tribunal is satisfied that the patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him/her to be liable to be detained in a hospital for medical treatment.

"(b) The Tribunal is satisfied that it is necessary for the health or safety of the patient or for the protection of other persons that he/she should receive such treatment."

7. The reasons for the decision are set out in writing on three pages running to twelve paragraphs. The Tribunal recited the evidence which it heard; and it resolved an issue between the experts, stating that it preferred the evidence and opinions of those consultant forensic psychiatrists who were of the opinion that the claimant was suffering from mental illness of a nature and degree which made it appropriate for him to be liable to be detained in hospital for medical treatment. This finding is expressed in paragraph 8 of the decision which reads:

"8. The Tribunal is therefore satisfied that the patient is now suffering from mental illness of a nature and degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment. As to whether it is necessary for his health and safety that he should receive such treatment the Tribunal accepted the submission of Miss Stern that this question has to be approached by reference to the practical alternative in the instant case (see Secretary of State for Home Department v Mental Health Review Tribunal (PH) [2002] EWCA Civ 1868; R v Secretary of State for Home Department ex parte IH [2003] UKHL 59)."

8. The decision continues at paragraphs 9 and 10:

"While the patient could, if he were not a prisoner, probably receive the treatment he requires without being detained in a hospital, the fact is that no such regime can at the present time be implemented. If he were discharged he would be returned to prison where, we are satisfied, his mental and physical health would rapidly and seriously deteriorate. Accordingly the Tribunal is satisfied that it is necessary for the patient's health and safety that he should receive such treatment (as a detainee in hospital).

"10. If the above approach were incorrect and the Tribunal was required to proceed on the theoretical hypothesis that the patient could receive the treatment he requires other than as a detainee in hospital, then the Tribunal would have made a recommendation under section 74(1)(b) that the patient should continue to be detained in hospital. The Tribunal would not, however, have (a) made any recommendation in relation to the identity or characteristics of such a hospital, whether by reference to the level of security or otherwise, or (b) specified any conditions which it would have imposed."

9. These three paragraphs set out the core of the Tribunal's findings and the reasons for its decision. The Tribunal's approach by reference to the practical alternative was, as it stated, to consider the position if the claimant was discharged and transferred, as it found he would be, to prison. A challenge by the claimant is made on the basis that the Tribunal ought to have considered the question of discharge by reference to discharge into the community. It is submitted that by considering only discharge back to prison, the Tribunal did not follow the correct statutory procedure and misdirected itself.
10. This submission is not accepted by the defendant or the interested party. They submitted that the Tribunal properly directed itself in accordance with legal precedent and reached an inevitable conclusion. It is further submitted by the defendant and the interested party that, even if successful, this challenge will have no practical effect on the claimant's position or status.
11. The issues are therefore: (1) did the Tribunal adopt the correct approach to the decision it had to make; and (2) did the misdirection, if misdirection there be, have any practical effect on the claimant's position and status?
12. Before embarking on a summary of the more detailed submissions made by counsel for the claimant and counsel for the defendant and interested party, it is necessary to refer to some of the relevant statutory provisions of the Mental Health Act. It is, of course, well known to those practising in the Crown Court that the Crown Court has power to make a hospital order in respect of mentally ill defendants pursuant to section 37 of the Mental Health Act, together with a restriction order pursuant to section 41. The Secretary of State has power to order the transferral of a convicted prisoner from prison to hospital pursuant to section 47. In addition, under section 48 of the Mental Health Act, the Secretary of State has power to transfer to hospital, among other persons, those detained under the Immigration Act 1971.
13. It is in the exercise of his powers under section 48 that the Secretary of State transferred the claimant from Belmarsh to Broadmoor Hospital. In addition, the Secretary of State has a power, which he exercised in this case, to make a restriction direction pursuant to section 49. The effect of such orders are deemed to be the same as orders made by the court pursuant to sections 37 and 41.
14. I now turn to the provisions which deal with the discharge of patients and the powers of Tribunals. They are contained within section 72 to 74 and I set out below the material parts of those sections as they apply in this claim. First, section 72, which is headed "Powers of Tribunals". Under the general heading "Discharge of patients", subsection 1 reads:

"Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and --

"(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied --

"(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

"(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

"(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied --

"(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

"(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment."

15. Section 72(1)(iii) is not, nor is any other part of section 72, relevant for these purposes. Section 73, under the heading "Powers to discharge restricted patients" reads:

"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if --

"(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and

"(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

"(2) Where in the case of any such patient as is mentioned in subsection (1) above --

"(a) paragraph (a) of that subsection applies; but

"(b) paragraph (b) of that subsection does not apply,

"the Tribunal shall direct the conditional discharge of the patient."

16. For these purposes it is unnecessary for me to refer to subsections (3) to (8) of section 73.
17. Section 74 in its material parts reads:

"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to [a limitation direction or] restriction direction, or where the case of such a patient is referred to such a tribunal the tribunal --

"(a) shall notify the Secretary of State whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and

"(b) if they notify him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital."

18. Subsection 4 reads:

"If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal have made a recommendation under subsection 1(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed."

19. I have found the procedures set out in these sections not easy to follow, but their effect has been helpfully summarised by Mr Bowen in his skeleton argument and I gratefully adopt that summary. The effect in the case of a restricted patient subject to a restriction direction made under section 48 is firstly:

"(i) The tribunal must, if not satisfied either that the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment or that it is necessary for the health and safety of the patient or the protection of others that he continue to receive medical treatment in hospital, make a recommendation for discharge under section 74(1)(a)."

20. Secondly:

"(ii) If the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital, they must recommend the patient's absolute discharge; if they are not so satisfied, they must recommend the patient's conditional discharge (section 73(1)(b) and 73(2))."

21. Thirdly:

"(iii) If the tribunal recommends the patient's conditional discharge then it may also make a recommendation under section 74(1)(b) that, in the event of his not being discharged under section 74, the patient should continue to be detained in hospital. If the Secretary of State accepts that recommendation the patient remains in hospital notwithstanding he no longer satisfies the criteria for detention under the Act (or under Article 5(1(e)).

22. Fourthly:

"(iv) by virtue of section 74(4) a patient subject to a transfer direction under section 48 cannot be discharged by the Secretary of State under section 74, either absolutely or conditionally. His discharge powers under section 74(2) only apply to serving prisoners transferred under section 47. The patient will automatically be remitted back to the place of his former detention if the recommendation is for absolute discharge or if a recommendation for conditional discharge has been made but without a recommendation under section 74(1)(b). If a recommendation has been made under section 74(1)(b) the patient is not automatically remitted back to their former place of detention and he will remain detained until remitted back to prison by the Secretary of State under section 53, discharged by the Secretary of State under section 42(2) or the justification for his underlying detention expires."

23. Mr Bowen goes on to submit that if the Tribunal make no recommendation for discharge under section 74(1)(a) it should go on to consider whether to make recommendations under section 53(2). That submission is not accepted by the defendant, who has submitted that the Tribunal has no duty or obligation to consider section 53. This is a peripheral matter to the main submissions in this case, but in my view Ms Grey's submission on behalf of the defendant is to be preferred in this respect to that of Mr Bowen.
24. I turn now to the submissions of Mr Bowen on behalf of the claimant. The principal ground of challenge to the decision of the Tribunal is that the Tribunal, when considering whether it was appropriate for the claimant to remain liable to be detained in hospital for medical treatment and whether it was necessary that he should receive such treatment, were to be answered by reference to the alternative of discharge into the community and not discharge back to prison. He submitted that the appropriateness or otherwise of being remitted back to prison only fell to be considered at the time that the Tribunal considered whether or not to make a recommendation under section 74(1)(b). He gave a number of reasons as to why this argument was correct, one of which overlapped with his submissions of the practical effects of this direction.
25. The reasons are as follows. First, it is submitted that to adopt the approach of the Tribunal is to render section 74(1)(b) valueless and otiose. That is so because in the event that the Tribunal concludes that there can be no conditional discharge because of his inevitable return to prison, there can be no argument but for him to remain in hospital. It is submitted that the questions of appropriateness and necessity, if judged against the alternative of detention in prison as opposed to discharging into the community, will always end up with a decision not to recommend a discharge. There is, therefore, no purpose in the Tribunal being given the power to recommend that such a patient remain in hospital rather than in prison, if that exercise has already been carried out in determining whether the discharge criteria are met.
26. Secondly, it is submitted that the approach contended for by the claimant is mandatory as a matter of construction of the words of section 74(1)(a). In particular Mr Bowen laid stress upon that part of (a) which reads:

"... if subject to a restriction order..."

27. Mr Bowen pointed to the fact that the words "restriction order" is a reference to the words of section 41 which deals with offenders in the Crown Court. By contrast, section 49 is referred to as a restriction direction. He submitted that in the case of offenders, the Tribunal would be considering discharge into the community because that is the only option if an offender is to be discharged absolutely or conditionally. It is submitted that it follows that, when considering a patient transferred with a restriction direction pursuant to sections 48 and 49, the Tribunal must as a matter of statutory construction consider discharge and conditional discharge on the basis of discharge into the community.
28. Thirdly, it is submitted that the interaction of sections 53 and 74 provides a gateway for a Tribunal to recommend that a patient who is treatable but who cannot be treated because of, for instance, non-cooperation, be returned to prison. That, it is submitted, gives the answer to the defendant's argument that the construction contended for by the claimant would lead to the absurd position that a Tribunal would be required to consider discharge into the community for a prisoner however unlikely it might be that release would be permitted.
29. Fourthly, it is submitted that in this case the Tribunal was wrong to treat the claimant's return to prison as inevitable if there was a recommendation for discharge or conditional discharge. Reference is made to section 42 of the Mental Health Act which gives power to the Secretary of State to discharge a patient from the effects of a section 41 order and also gives power to the Secretary of State to discharge a patient absolutely or conditionally. So it is submitted that the Tribunal ought to have had this possibility in mind and go on to consider any necessary conditions that might be necessary on conditional discharge into the community. Mr Bowen submitted that this would have the effect of giving SIAC information upon which it might act in considering grant or refusal of bail. He submitted that by failing to consider this option, and any conditions which needed to be satisfied, the Tribunal were effectively making it impossible for the claimant to be released on bail.
30. The fifth reason advanced by Mr Bowen arose in response to arguments made on behalf of the defendant and by Miss Stern on behalf of the interested party. The sixth reason is that the Tribunal's construction is incompatible with Article 5(1)(e) of the Human Rights Convention. I shall deal with those two arguments separately.
31. Mr Bowen finally contended that the word "discharge" in section 74(1)(a) means discharge into the community and not discharge back to prison. He submitted that if it meant discharge back to prison, the words would have to be qualified by the inclusion of the words "and released".
32. In his reply to submissions made by the defendant and interested party, Mr Bowen amplified those submissions to which I have just referred by making a general point as to the role of the Tribunal. The point is that, in effect, the Tribunal has only advisory powers when dealing with an Immigration Act detainee or a serving prisoner. In such cases, the patient's actual release from detention depends upon the exercise by another body such as the Secretary of State, SIAC, or the parole board with powers under the Mental Health Act or some other statute. He submitted that a Tribunal recommendation for discharge gives a patient only a contingent right to be released that is upon another statutory body exercising its power in his favour.
33. Accordingly, it is submitted that the Tribunal in such cases must make its decision taking into account the fact that another statutory body is going to decide upon this. The Tribunal should not speculate as to how that statutory body will exercise its powers. What it must do is to cater for all options open to the other statutory body. He submitted that that must inevitably mean that the Tribunal has to consider discharge into the community.
34. The response of the defendant and the interested party is principally based on dicta in R(H) v Secretary of State for Home Department [2003] 3 WLR 1278. That case involved consideration of the Tribunal decision concerning a prisoner subject to sections 37 and 41 orders. The leading speech in the House of Lords was given by Lord Bingham, with which the other members of the House agreed. Much of Lord Bingham's speech is taken up with the citation of passages from Lord Phillips' judgment in the Court of Appeal which Lord Bingham approved. The case involved what Lord Phillips described as the "critical impasse" at page 1296, E to F:

"Where a tribunal considers that it is necessary for the health or safety of the patient or the safety of others that the patient continues to receive psychiatric treatment, and that it is reasonable for such treatment to be provided in the community, but the psychiatrists who would have to provide such treatment refuse to do so because they disagree with the tribunal's view that the patient can safely be treated in the community."

35. Lord Bingham then cites the resolution of that impasse as found by the Court of Appeal:

"We consider that in a case such as the present the provisions of section 73 of the Act operate as follows. Where a tribunal decides (i) that a restricted patient is suffering from mental illness for which psychiatric treatment is necessary for the health or safety of the patient or the protection of other persons and (ii) that detention in hospital for that treatment is not necessary if, but only if, psychiatric treatment is provided in the community, the tribunal can properly make a provisional decision to direct a conditional discharge, but defer giving that direction to enable arrangements to be made for providing psychiatric treatment in the community. The health authority subject to section 117 duty will then be bound to use its best endeavours to put in place the necessary after-care. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours, the health authority is unable to provide the necessary services, the tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment, it should record that decision."

36. Lord Bingham then went on to refer to the six factors set out by the Court of Appeal for a Tribunal to consider, the last of which appears at page 1297 and reads:

"It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements."

37. Finally, Lord Bingham dealt with the Article 5(1)(e) point at paragraph 28 of page 1298 of his judgment. I read it in full:

"There was no time between 3rd February 2000 and 25th March 2002 when the appellant was, in my opinion, unlawfully detained, and there was thus no breach of article 5(1)(e). There is a categorical difference, not a difference of degree, between this case and that of Johnson. Mr Johnson was a patient in whose case the Winterwerp criteria were found not to be satisfied from June 1989 onwards. While, therefore, it was reasonable to try and ease the patient's reintegration into the community by the imposition of conditions, the alternative, if those conditions proved impossible to meet, was not continued detention but discharge, either absolutely or subject only to a condition of liability to recall. His detention became unlawful shortly after June 1989 because there were, as all the doctors agreed, no grounds for continuing to detain him. The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. The appellant was never detained when there were no grounds for detaining him. To the extent that Buxton and Sedley LJJ differed from the Master of the Rolls on this point in K, the opinion of the latter is to be preferred."

38. Miss Grey for the defendant argued that the decision in R(H) v Secretary of State is precisely similar to the situation in this case. In this case the Tribunal was faced with what it described the position of the patient being:

"If he were discharged he would be returned to prison ..."

39. Miss Grey submitted that the Tribunal had to face up to that practical reality. There was no question of absolute discharge; so much is clear from paragraph ten of the decision. Accordingly, the only option of the Tribunal, on its findings as to the mental state of the claimant, was to notify the Secretary of State that the claimant would not be entitled to be discharged. She submitted it would be absurd to consider a conditional discharge in the knowledge that the necessary conditions could not be fulfilled.
40. Further, Miss Grey pointed to the practical difficulties which would arise if a Tribunal had to consider discharge into the community. Local health and social service authorities would be required to produce a plan to deal with the after-care services, pursuant to section 117 of the Mental Health Act, in the knowledge that the claimant was not going to be discharged into the community. The consequence would be a needless waste of resources.
41. Miss Grey made a number of submissions on the specific reasons before the court today. I shall with these as I deal with my conclusions in respect of the first issue to which I now turn. I shall deal firstly with five of Mr Bowen's seven reasons before turning to the submissions on the effect of the R(H) v Secretary of State.
42. As far as Mr Bowen's first reason is concerned, Miss Grey submitted that on the Tribunal's approach, section 74(1)(b) was not otiose. She pointed to the fact that section 74 is concerned with different categories of patients in addition to those transferred as Immigration Act detainees. Some, such as serving prisoners, fell to be considered under section 74(2) rather than section 74(4). Different considerations would apply to those coming under section 74(2).
43. However, it is at least possible that a patient might be suitable for discharge to prison, with the conditions attached, which could be fulfilled even if he were returned to prison. But the Tribunal might nevertheless consider it necessary to make a recommendation under section 71(1)(b) preventing the return to prison. Mr Bowen submitted that this latter argument would involve the Tribunal reaching two wholly inconsistent conclusions. There is, in my view, force to Mr Bowen's response to Ms Grey's second submission on this reason, but in my opinion her first point is persuasive.
44. My conclusion is that it is simply not possible to rule out a situation where, on the Tribunal's approach in this case, there may yet be situations where a section 74(2)(b) order will still be appropriate. I am conscious of the fact that, as Ms Grey submitted, this section deals not just with Immigration Act detainees.
45. Turning to Mr Bowen's second reason, namely that the phrase "restriction order" used in section 74(1)(a) must mean that the Tribunal's considers discharge into the community: I do not accept this as correct. It seems to me much more likely, as Miss Grey submitted, that it is a statutory device referring back to the criteria set out in the section 73. I do not accept that that phrase means that the Tribunal can only consider the alternative to discharge into the community. In this connection it is convenient to deal with Mr Bowen's submission on the meaning of discharge in section 74(1)(a) and (b). I prefer Miss Grey's submission that discharge here refers to no more than discharge from hospital. It does not exclude consideration of discharge back to prison.
46. Mr Bowen's third reason concerns the relationship between section 74 and section 73. In my opinion, section 53 provides a free-standing power with which the Secretary of State may, in certain circumstances, remit a person transferred under section 48 back to "any place where he might have been detained if he had not been removed to hospital". It is a method of reversing the process of transfer, and in my judgment it does not assist Mr Bowen's interpretation of the construction of section 74.
47. As to Mr Bowen's fourth reason, it is of course correct that the Secretary of State has power under section 42(1) and 42(2) of the Mental Health Act to discharge both a restriction order and to discharge a patient from hospital. It is also correct that SIAC has power to grant bail to the claimant even though he is in hospital. I should prefer to deal with the effects of the grant of bail later in this judgment.
48. However, with reference to Mr Bowen's contingency release argument, in my judgment that does not mean that the Tribunal must necessarily consider these possibilities, when in this case, as it appears from its finding, it was argued on the basis that any discharge, absolute or conditional, would mean a return to detention in prison. At the time that the case came before the Tribunal, the claimant had made no application for bail. It is, therefore, hardly surprising that the Tribunal did not consider this possibility. The decision makes no reference to a possible discharge from hospital under section 42(2). Again, such a possibility would seem to be far-fetched in the extreme, particularly as the Secretary of State was represented by counsel at the hearing.
49. On the facts as found by the Tribunal, I reject this argument as providing any reason why the Tribunal should have considered these possibilities as reasons for considering the option of a conditional discharge into the community. However, I shall have more to say on this topic later in this judgment.
50. I turn now to what I consider to be the principal and most important submissions made by each side. As I have set out, these submissions revolve around the decision in R(H) v Secretary of State. I have already referred to the passages relied on by the defendant and the interested party. Mr Bowen responded to these submissions in a number of ways. First, he submitted that it is important to note that that case was concerned with the impossibility of the fulfilment of conditions of discharge. Here the Tribunal was concerned with the impossibility of release. Further, he returned to his fourth reason and submitted that as the Tribunal's powers are advisory, it ought to have considered and catered for the possibility that the Secretary of State might use his powers to discharge under section 42(2), however remote this possibility may have been.
51. Of more significance in my view was Mr Bowen's submission that the Tribunal's function as an expert body is to determine whether a detained patient satisfies the criteria for detention under the Mental Health Act. Its function as a court is to satisfy the lawfulness of a patient's detention under Article 5(1)(e) of the Convention. Since, in his submission, the Tribunal had not considered what conditions were necessary for discharge into the community, it had not carried out its function and the claimant's rights under Article 5(1)(e) were breached.
52. Having considered the submissions made by Mr Bowen and Ms Grey, I am quite satisfied that the facts of R(H) v Secretary of State, whilst not precisely similar to the facts of this case, provide a good guide as to the approach that the Tribunal should adopt. In my judgment the reality was that there was no suggestion that the claimant could be released into the community on conditions. The finding of the Tribunal shows that this was not a case where the conditions required for a conditional discharge were such that the claimant could be conditionally released to return to prison. It seems clear that he needed a more structured regime than that which could be provided in Belmarsh.
53. In this connection, it is noteworthy that the transcript of the directions hearing before SIAC in respect of the bail application suggests that it is accepted that the best the claimant can hope for from a bail application is release to a semi-secure hospital. It seems to me to follow that the Tribunal, having found that the claimant was suffering from a mental illness that required treatment, which although if he was not a prisoner he would probably receive without being detained in hospital, was nevertheless faced with the impossibility of him being treated without being detained in hospital. In that respect, he was in the same position as the unfortunate claimant in R(H) v Secretary of State. I accept the submission of Miss Grey that in these circumstances the difference between the impossibility of fulfilling the conditions and the impossibility of release is not a true distinction. I am also satisfied that the findings and approach of the Tribunal do not represent a breach of Article 5(1()e).
54. In this case, the claimant could not be treated in the community because of the section 21 certification. There is no doubt that that certification cannot be a breach of Article 5(1) by reason of the Human Rights Act 1998 (Designated Derogation) Order 2001. Mr Bowen submitted, by reference to a passage in A v Secretary of State for the Home Department [2004] Queen's Bench Division 335, that the derogation order should be given the narrowest possible construction. I accept that this is so, but here the impossibility which faced the Tribunal was one created by the section 21 certification and in my opinion it is covered by the derogation order. In any event, since it is a lawful detention, in my view the detention under the Mental Health Act would not represent a breach of Article 5(1)(e), as is apparent from Lord Bingham's speech in the R(H) v Secretary of State; Article 5(1)(e) is not breached when it is impossible to meet conditions.
55. For all these reasons, in my view, the Tribunal did not misdirect itself.
56. In view of my conclusions just stated, it is strictly not necessary to consider the second issue, which concerns the consequences of such an alleged misdirection. However, since the matter has been argued, I shall consider these submissions, but briefly. Mr Bowen submitted that the consequence is that the claimant is prejudiced in his bail application before SIAC. The defendant and interested party submitted that whether or not there was a misdirection, the consequence is the same, namely that the claimant will remain in hospital. Mr Bowen argues that if the Tribunal had made a recommendation for the conditional discharge, he would be in a better position to be granted bail by SIAC.
57. I have struggled to see how the claimant's position would be any different but for the alleged misdirection. Whether or not there was a misdirection in paragraph 9, the Tribunal stated that even if it had made a conditional discharge recommendation, it would have made a section 74(1)(b) recommendation which would have meant the claimant would remain in hospital. In addition, it is not in dispute that the claimant can and has applied to SIAC for bail. At the hearing for directions, orders have been made for the preparation of up-to-date medical reports on the claimant. The Secretary of State concedes that if SIAC granted bail, this would have the effect of terminating the detention of the claimant under the section 48 transfer direction. This is because the section 48 transfer direction is dependent upon the claimant's detention order under the Immigration Act. In fact, as already noted, the claimant in his bail application is asking for bail to a semi-secure hospital. The recommendation that the claimant be transferred to a semi-secure hospital is, as I understand it, not a recommendation that the Tribunal has statutory power to make.
58. Notwithstanding Mr Bowen's argument that if the Tribunal, the expert body in matters of mental health, had dealt with the matter on the basis that it must consider discharge into the community, I am unpersuaded that it would have made any difference to his position. In view of the contents of paragraph 9 of the decision of the Tribunal, and the fact that the claimant is only seeking bail to a semi-secure hospital, it seems to me inevitable that the claimant would have remained in Broadmoor Hospital.
59. I should perhaps add that when these proceedings were first launched by the claimant, an application for urgent consideration was made. The reason for the urgency was specified in these terms:

"The claimant is detained as a 'suspected international terrorist' under section 21 of the Anti-terrorism, Crime and Security Act 2001. He has been transferred to Broadmoor Special Hospital under sections 48 and 49 of the Mental Health Act 1983. His application to the Mental Health Review Tribunal for a recommendation that he be released from detention under the Mental Health Act was dismissed on 9th January 2004. Unless and until he is discharged from detention under the Mental Health Act he cannot make an application to the Special Immigration Appeals Commission for release on bail. For that reason it is requested that this application be considered expeditiously."

60. As I have stated previously, it is now common ground that an application for bail can be made and entertained by SIAC. It is clear that when up-to-date medical reports have been obtained by both sides, the application will be heard and determined. It may or may not have the effect of bringing the Mental Health Act detention to an end.
61. These conclusions provide an additional reason to those already stated for rejecting this claim for judicial review of the Tribunal's decision, and accordingly I dismiss this application.
62. MS GREY: My Lord, in those circumstances I would formally ask for an order that the application be dismissed. We have no application to make in respect of costs. The claimant is funded by the Legal Services Commission, so we would simply ask for no order as to costs in respect of our costs.
63. MR JUSTICE GAGE: Have you anything to add, Miss Stern?
64. MISS STERN: No, my Lord.
65. MR JUSTICE GAGE: Very well. Nor I doubt you, Miss Widdicombe. Do you need a direction for an assessment of your costs?
66. MISS WIDDICOMBE: I have no instructions on that, my Lord.
67. MR JUSTICE GAGE: Well, if you need it you may have it. Miss Grey, by her nod, seems to suggest that you do. Yes?
68. MISS WIDDICOMBE: I would ask my Lord for leave to appeal in this matter. Obviously, I am not in a position at the moment to talk about the real prospect of success of any appeal. I was not trial counsel, as you are aware, and obviously the judgment has just been read out for the first time. The grounds at the moment would be that there is some other compelling reason that his SIAC appeal may turn on the outcome, and in addition it raises a point of law of some importance.
69. MS GREY: My Lord, we would resist that on the grounds that your Lordship has delivered a clear judgment. We would submit that if any permission was to be granted to appeal, it should be from the Court of Appeal. That is particularly so when in this case there is a SIAC application pending and it is important that this matter remain resolved, unless there are indeed compelling reasons. But the matter should be looked at afresh in the Court of Appeal, otherwise we are too easily going to head for the situation where there are still two sets of proceedings outstanding at any one time.
70. So for that reason, I would invite your Lordship to dismiss that application.
71. MR JUSTICE GAGE: Any observations, Miss Stern?
72. MISS STERN: Might I also oppose the application for leave to appeal, but I have nothing to add to my learned friend's words.
73. MR JUSTICE GAGE: Very well. Do you want to reply?
74. MISS WIDDICOMBE: I have nothing to add, my Lord.
75. MR JUSTICE GAGE: Very well. I am afraid I am going to refuse leave to appeal. It seems to me that there are no compelling reasons for me to grant leave to appeal. This is a matter which ought to proceed before SIAC as expeditiously as possible and, in any event, in view of my conclusion that the status and position of the claimant really remains unchanged throughout, there seems to me no reason why leave to appeal should be granted. If you require leave to appeal you must go to the Court of Appeal.
76. Now, we must deal with the question of anonymity. There are two ways of dealing with it. I recognise that you are not trial counsel in this case, Miss Widdicombe. It might be possible to adjourn it so that Mr Bowen can deal with it, but the better course it seems to me is to deal with it here and now. If you would like a bit more time to consider the letter, you may certainly do so and I hope very much that in any event, Miss Grey will feel it right to assist, if not in any adversarial position, as a friend of the court.
77. MS GREY: I will do what I can, my Lord.
78. MR JUSTICE GAGE: Thank you. Do you both want a moment or two to consider it? It is up to you, Miss Widdicombe, or are you able to deal with it here and now?
79. MISS WIDDICOMBE: I would prefer for Mr Bowen to deal with it, but if it is your Honour's wish that it is --
80. MR JUSTICE GAGE: I think it ought to be dealt with this morning. What I want to know is whether you would like a bit more time?
81. MISS WIDDICOMBE: I would, my Lord, yes.
82. MR JUSTICE GAGE: I understand that. How long do you want? I will give you until quarter to twelve.
(A short break)

(11.50 am)

83. MR JUSTICE GAGE: Yes, now. Miss Widdicombe, about what I have said.
84. MISS WIDDICOMBE: I would like the order for anonymity to be continued, however I am not really able to assist the court very much.
85. MR JUSTICE GAGE: Well you can assist me in this case, or perhaps Miss Grey can assist. What was the position at SIAC, was he anonymous there?
86. MS GREY: The default position is that the Tribunal itself sits in private and so it needs a specific application by the patient to lift that. When one comes into the High Court the position is governed by CPR 39.2. My Lord, I have possibly not the most up-to-date volume of the White Book, it is volume 2003. I have it at page 899 in my edition. Your Lordship sees that the court firstly had the power to go into private under 39.23.
87. MR JUSTICE GAGE: Yes. Well, no-one has suggested that one should do that in this case.
88. MS GREY: Quite, but it is important to note that that is perhaps one of the reasons why it also has the lesser power under 39.22. It may order that:

"...the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness."

89. So that is the test for your Lordship: the interests of the claimant. In relation to that, my Lord, we have checked the position with the assistance also of those instructed on behalf of the Secretary of State, and we understand that the whole of the SIAC proceedings are in the open domain.
90. MR JUSTICE GAGE: No, Miss Stern is no doubt talking about the closed part. But he was not anonymised in SIAC.
91. MS GREY: He was not anonymised in SIAC and therefore I should have said that there was no anonymity protecting his identity in the open part of the SIAC proceedings and by the same token we understand that the bail application will proceed on the same basis.
92. MR JUSTICE GAGE: What, that it is all under his name?
93. MS GREY: It is, my Lord, as things stand. So, my Lord, that, I think, answers your Lordship's question. The issue then really relates, I might suggest, to whether or not there are any issues relating to Mr A-R's mental health and his status in that regard, which require protection either by anonymising his name or by limiting access to any of the papers of the court. Perhaps I could just say three things briefly of that. Firstly, to the extent that the letter your Lordship has been handed suggests at one point that the press are concerned that there is an application for an order, or possibly even an order, that prevents any reporting of these proceedings, I --
94. MR JUSTICE GAGE: This is plainly not right.
95. MS GREY: My Lord, no.
96. MR JUSTICE GAGE: The proceedings can be reported in the usual way, the only question is whether it is anonymised or not.
97. MS GREY: Yes. So, my Lord, that is the second point I would make; that the issue for your Lordship is whether to allow reporting under the name "A", or the full name. My Lord, in that regard, clearly the question is whether there is some interest in Mr Abu-Rideh, particularly, I would suggest, in respect of his mental health that still requires protection by that form of anonymity. Perhaps, in that regard -- I do not want to make submissions on the point because I do not have instructions from his solicitors who would perhaps be the only people who could properly raise any specific issues as to that -- but perhaps I could draw one aspect of these proceedings to your Lordship's attention and it is this: if your Lordship were to allow the reporting of Mr A-R's name, your Lordship still has power separately to ensure that access is not granted to the bundle of documents in the court proceedings, which of course do contain the medical reports. That is just a further sort of complication in these sorts of cases, which I should perhaps draw to your Lordship's attention. If your Lordship looks at CPR 31.22, at page 725 of my White Book, your Lordship will see --
98. MR JUSTICE GAGE: 31.22?
99. MS GREY: Indeed, "Subsequent use of disclosed documents." My Lord, it covers the use of documents once they have been read to or by the court, or referred to at a hearing which has been held in public. Your Lordship may recollect that before they are referred to an open court, they are not generally available for inspection because of the limitations --
100. MR JUSTICE GAGE: Well, in this case, very little has been referred to in open court.
101. MS GREY: Well, my Lord, I think I am just a little uncertain because of the fact that if a document has been read by the court then it still falls under the same provisions.
102. MR JUSTICE GAGE: I see. So, for instance, if in my judgment I have set out part of the decision of the Mental Health Review Tribunal, there can be no reason not to report that part of it, but it might be said that the rest of the report goes unread.
103. MS GREY: Exactly, my Lord. All I am suggesting is that even if your Lordship is not aware of any particular reasons why there is no reason why Mr A-R's name could be released, your Lordship still also has the power to add that the documents put before your Lordship are not open to further inspection.
104. MR JUSTICE GAGE: Other than the parts which appear in the judgment?
105. MS GREY: Well, my Lord, the judgment will speak for itself in effect.
106. MR JUSTICE GAGE: Well, just for the avoidance of doubt.
107. MS GREY: Yes. Your Lordship will see in any event there would still be liberty to apply to vary any such order, so if the press were concerned by that, that could be rectified in the future. I simply draw that point to your Lordship's attention because it is a form of additional protection for Mr A-R. My Lord, I do not think I can say anything substantive about where his interests lie in this matter.
108. MR JUSTICE GAGE: No, I agree. Now Miss Widdicombe, can I tell you what my provisional view is. Since he has not been anonymised in SIAC, unless there is some compelling reason why he should be anonymised here -- I say compelling; if I have to consider non-disclosure necessary in order to protect his interests, you will need to persuade me that there is some reason why his interests should be protected by having his identity anonymised.
109. MISS WIDDICOMBE: My Lord, I have no instructions on that. I am unable to deal with it, I am afraid.
110. MR JUSTICE GAGE: Well, that is on the awkward side. Do you have a solicitor here?
111. MISS WIDDICOMBE: I have an outdoor clerk, I believe, my Lord.
112. MR JUSTICE GAGE: Well it is very unfortunate, I am bound to say.
113. MISS WIDDICOMBE: I think, my Lord, that this has just been a total surprise. I do not think --
114. MR JUSTICE GAGE: When you say a total surprise, it was mentioned at the start of the case and I said I would continue it in a moment, but in fact it only came up at my instigation at the start of the case. What are you asking or proposing that I do?
115. MISS WIDDICOMBE: I would like the matter adjourned until Mr Bowen could get here.
116. MR JUSTICE GAGE: Where is he?
117. MISS WIDDICOMBE: I do not know.
118. MR JUSTICE GAGE: Well, it is not a very satisfactory position, is it?
119. MISS WIDDICOMBE: No, I have spoken to him today, my Lord, and he said he is not able to get here today.
120. MR JUSTICE GAGE: I find the position really very unsatisfactory that one cannot deal with this matter. Those who come in the place of other counsel are really here to assist the court in any matters that arise.
121. MISS WIDDICOMBE: Yes, my Lord, I can only apologise, I am very sorry.
122. MR JUSTICE GAGE: At the moment, I cannot see any reason why I should do other than remove the order that anonymises the claimant, but make an order that none of the court papers be disclosed to the...
123. MS GREY: My Lord, I am so sorry to interrupt. If your Lordship permits me to do so, can I suggest that there is one further course of action that is open to your Lordship. It would be to lift the order granting anonymity but to defer implementation for, say, two or three days. Now I apprehend that in making that suggestion, it will not find favour with the gentlemen of the press, because the usual point is made is that --
124. MR JUSTICE GAGE: But it is a reasonable suggestion.
125. MS GREY: Well, I know it will not find favour, because the usual point is made that the only good news is new news, and that stale news is not -- and I am trying the represent the submission that might perhaps be made on their behalf.
126. MR JUSTICE GAGE: I do not mind if any gentleman of the press would say anything they would like to me.
127. SPEAKER: My Lord, I was just going to make the point that we are reporting contemporaneously, but one can understand the reason for the request for a delay in reporting and I apologise for not having said --
128. MR JUSTICE GAGE: I do not think you need apologise. I think it was a matter which was going to come up in any event.
129. SPEAKER: That is why I brought the letter, my Lord.
130. MR JUSTICE GAGE: Because you were here --
131. SPEAKER: Yes, and you said you would reconsider, my Lord.
132. MR JUSTICE GAGE: Yes, I did. Right, in this very unsatisfactory and unfortunate position, what I propose to do is to make an order lifting the anonymity of the claimant unless an application is made before 4.30 pm on Monday. In other words, the order will continue until half past four on Monday 26th July. I shall be here -- I say here, probably in this court on Monday, so that an application can be made to me, but unless such an application is made by half past four on Monday, the order that he remains anonymous will be lifted.
133. I shall make an order, in any event, that the court documents be not disclosed other than those parts which appear in the judgment. It is not a very satisfactory situation. I am sorry about that, but it seems to me that it is probably in these circumstances the best that I can do. Thank you very much.