H v Mental Health Review Tribunal [2001] All ER (D) 328, [2001] EWCA Civ 415

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R (on the application of H) v Mental Health Review Tribunal, North & East London Region and another

[2001] EWCA Civ 415

COURT OF APPEAL (CIVIL DIVISION)

LORD PHILLIPS MR, KENNEDY, DYSON LJJ

28 MARCH 2001

R Gordon QC and P Bowen for the Appellant

J Richards for the Respondent

R Singh for the Secretary of State for Health as intervenor

Scott-Moncrieff, Harbour & Sinclair; Treasury Solicitor

LORD PHILLIPS MR

Introduction

This is the judgment of the Court.

[1] On 15 September 1988, the appellant, whom we shall call ‘H’, was convicted of manslaughter. He was ordered to be detained in a hospital and to be subject to special restrictions pursuant to ss.37 and 41 of the Mental Health Act 1983 (“the Act”). He was admitted to Broadmoor Hospital. On 22 December 1999, he applied to the Mental Health Tribunal (“the tribunal”) for a discharge pursuant to s.73 of the Act. On 29 March 2000, the tribunal decided that he should not be discharged from liability to be detained. H applied for judicial review of the decision of the tribunal. On 15 September 2000, Crane J dismissed his application. Moreover, he refused to grant declaratory relief as to the compatibility of s.73 of the Act with art 5(1) and (4) of the European Convention on Human Rights (“the Convention”). On 20 December 2000 the appellant obtained permission to appeal against these decisions from Laws LJ, who commented: “the appellant should be allowed to argue his Human Rights Act 1998 points”. In the event the only issue that has been pursued before us has been the question of whether s.73 of the Act can be given an interpretation which is compatible with the Convention. That is a matter in which H has an interest. He is about to make a further application to the Mental Health Review Tribunal to be discharged from hospital. The true interpretation of s.73 may impact on the result of that application. The Secretary of State was given the requisite notice of an application by H for a declaration that s.73 is incompatible with H’s rights under art 5 of the Convention. He has appeared at this appeal, through his Counsel, Mr Rabinder Singh. Mr Singh has informed us that the Secretary of State wishes this court to make a declaration of incompatibility if it concludes that s.73 is not compatible with the Convention. The point is one of general importance and, in the circumstances, we have thought it right to entertain it.

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