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A hospital order patient (including a patient on leave of absence) can apply to the FtT once within the second six months of his detention and once within every 12-month period thereafter. Ratio |
A conditionally discharged restricted patient who has not been recalled to hospital can only apply once within the second 12 months of his discharge and once within every two-year period thereafter. Ratio |
At the very least, this is an indication that it was not thought that such patients required the same degree of protection as did those deprived of their liberty; and this again is an indication that it was not contemplated that they could be deprived of their liberty by the imposition of conditions. Ratio |
Conclusion RPC |
For all those reasons, I conclude that the MHA does not permit either the FtT or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. RPC |
It follows that this appeal must be dismissed. RPC |
The making of a hospital order under section 37 of the Mental Health Act 1983, coupled with a restriction order under section 41, is a power given to the senior criminal courts (the Crown Court) in relation to offenders convicted of offences which carry sentences of imprisonment. PRE |
The power is designed to provide an alternative to (probably but not invariably lengthy) imprisonment in the case of an offender who is mentally disordered. PRE |
A restriction order can be imposed only, as section 41 explicitly says, where it is necessary for the protection of the public from serious harm, that is to say where the offender poses a risk of serious harm to the public: R v Birch (1989) 90 Cr App R 78. PRE |
No one doubts that the machinery now in place for the making of this combination of orders, and for subsequent review by the FTT, complies with the requirements of article 5 of the European Convention on Human Rights. STA |
That article, as is well known, specifically contemplates legitimate detention both of persons convicted before a criminal court (article 5(1)(a)) and of those who are of unsound mind, whether convicted or not (article 5(1)(e)). STA |
The prime purpose of this combination of orders is thus the protection of the public. Ratio |
Another is, plainly, the treatment and if possible rehabilitation of the offender, since then the risk of serious harm to the public may be reduced or, sometimes, eventually removed. Ratio |
Recovery and rehabilitation are, inevitably, very likely to be progressive and/or partial, rather than instantaneous or complete. Ratio |
If the treatment progresses to the point where the nature of the detention can be relaxed, consistently with the continued protection of the public, it is very plainly in the public interest that it should be. Ratio |
The mechanism contemplated by the Mental Health Act for this relaxation, where it is appropriate, is conditional discharge. Ratio |
The irony so cogently pointed out by Lady Hale at para 24 is that in this case the contention which invokes article 5 ECHR has the result, if it is correct, that a restricted patient who has made sufficient progress for his conditions of detention to be relaxed but not entirely removed, cannot be conditionally discharg... |
He will, very likely, instead remain in detention in hospital, because in the absence of conditions ensuring public safety it will not be possible for the FTT to say that it is not satisfied that his condition warrants his detention there (section 72(1)(b)(i) and (ii) as applied to restricted patients by section 73(1)(... |
This will be so, on the argument of the Secretary of State, even if everyone is agreed that the protection of the public would sufficiently be safeguarded by the relaxed conditions, and even if, as here, the offender actively seeks the relaxed form of detention. Ratio |
The two arguments which Lady Hale finds lead inevitably to this unsatisfactory result are one of legality and the other of practical construction of the scheme of the Mental Health Act. Ratio |
If they do indeed lead inevitably to this result, then of course they must prevail. Ratio |
It does not seem to me that they do. Ratio |
Lord Hoffmanns celebrated formulation of the rule of legality in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 131 must not be watered down. Ratio |
Fundamental rights are not to be taken away by a side- wind, or by ambiguous or unspecific words. Ratio |
The right to liberty is a paradigm example. Ratio |
But what is in question here is not the removal of liberty from someone who is unrestrained. Ratio |
The restricted patient under consideration is, by definition, deprived of his liberty by the combination of hospital order and restriction order. Ratio |
That deprivation of liberty is lawful, and Convention-compliant. Ratio |
If he is released from the hospital and relaxed conditions of detention are substituted by way of conditional discharge, he cannot properly be said to be being deprived of his liberty. Ratio |
On the contrary, the existing deprivation of liberty is being modified, and a lesser deprivation substituted. Ratio |
The authority for his detention remains the original combination of orders, from the consequences of which he is only conditionally discharged. Ratio |
This was the reasoning of the Upper Tribunal in Secretary of State for Justice v RB [2010] UKUT 454 (AAC), in the passage set out by Lady Hale at para 21. Ratio |
It seems to me that it was clearly right. Ratio |
It might be otherwise if the proposed conditions to be attached to discharge were to amount to a greater level of detention than is authorised by the hospital and restriction orders. Ratio |
If one were to hypothesise an improbable scenario in which a FTT were to be asked to impose a condition which amounted, for example, to solitary and isolated confinement, such a question might arise, and with it the application of the Simms principle. Ratio |
But the present case is not suggested to involve any potential conditions which are other than a relaxation of the detention to which MM is otherwise subject in the hospital. Ratio |
The position of a restricted patient subject to a court order for detention in a secure hospital is not comparable to that of the unconvicted defendant in Buzadji v Moldova, 5 July 2016 (Application No 23755/07). Ratio |
There is no reason to doubt that a deprivation of liberty is involved if a defendant awaiting trial is given, in effect, the choice whether to be remanded in custody or to avoid such remand by consenting to house arrest. Ratio |
Such a defendant is otherwise at liberty. Ratio |
A restricted patient who seeks relaxation of his detention conditions is not. Ratio |
It is necessary to confront the suggested practical and textual objections. Ratio |
(a) The Act specifically provides for conditional discharge. Ratio |
(b) For the reasons given by Lady Hale at paras 19 and 20 discharge in the context of a restricted patient must mean discharge from the hospital in which he is currently detained. Ratio |
(c) Everyone agrees that the power to order conditional discharge enables the FTT (or the Secretary of State) to impose conditions beyond that of liability to recall. Ratio |
Such conditions might include co-operation with treatment, attending appointments and keeping in touch with supervisors, the regular taking of medicine, perhaps keeping away from specified people or places or abstaining from specified practices. Ratio |
The only issue is whether if the conditions (considered outwith the context of an existing restriction order) meet the Cheshire West test of deprivation of liberty, they become impermissible (Surrey County Council v P; Cheshire West and Chester Council v P [2014] AC 896). Ratio |
(d) There clearly is a risk that a patient who initially professed his consent to conditions meeting the Cheshire West test might subsequently change his mind. Ratio |
That may well be a particular risk with a patient who is mentally disordered. Ratio |
There are indeed no specific provisions in the Mental Health Act, if this happens, for taking him into custody and restoring him to the place where his conditions require him to live. Ratio |
But what the Act does do is to authorise the Secretary of State to recall him to hospital (section 73(4)(a)). Ratio |
If he is recalled, that triggers the express provision in section 42(4)(b) which treats him henceforth as absent without leave, and then the various provisions of the Act for his being taken into custody and returned to the hospital come into operation. Ratio |
Whether or not the Act might have provided additional powers, these are perfectly viable and rational remedies for the risk of failure to comply with conditions. Ratio |
It may well be that it was not thought appropriate to vest in those managing some place of lesser security where the patients conditions required him to live, the same powers as those possessed by a secure hospital. Ratio |
(e) Moreover, the same risk of later refusal to comply with conditions will exist where the conditions do not approach the Cheshire West threshold, and it is met with the same remedy or sanction. Ratio |
If the patient, having initially professed himself keen to comply with medication rules, or anxious to avoid contact with particularly vulnerable persons, then decides not to comply with the conditions, then what the Act contemplates is that his case will be assessed by the Secretary of State who will either decide to ... |
If he does recall him, there are then ample powers to enforce the recall. Ratio |
Short of that, there are no powers to compel him to obey the conditions; no criminal offence is committed and he cannot physically be compelled to obey. Ratio |
The position is thus the same for conditions which meet the Cheshire West test and for those which do not. Ratio |
(f) Some reliance was placed upon the fact that the interval stipulated in the Act in which application to the FTT can be made is greater for a restricted patient who has been conditionally discharged than for a restricted patient who has not. Ratio |
The latter is entitled to apply within the period 6-12 months from the making of the hospital and restriction orders, and thereafter at 12- month intervals: section 70. Ratio |
The conditionally discharged patient is subject to a longer interval, namely within the period 12-24 months of discharge and bi-ennially thereafter: section 75(2). Ratio |
If, however, a conditionally discharged restricted patient is recalled to hospital, his entitlement to apply to the tribunal reverts to the same intervals as before his discharge: section 75(1). Ratio |
This can be said to be some indication that Parliament did not think that a conditionally discharged restricted patient needed the same protection by way of entitlement to make further application to the tribunal as a patient who either had not made any previous application or whose applications for discharge, conditio... |
But that is not surprising, given the difference between the two cases. Ratio |
The conditionally discharged prisoner will, by definition, have had a recent determination of the tribunal relaxing his manner of detention. Ratio |
It is going further than is justified to read into this difference a Parliamentary assumption that the conditions applied on conditional discharge could never amount to ones which, if considered without the background of an extant order for detention in hospital, would meet the Cheshire West test for detention. Ratio |
Whilst this consideration is of some limited weight, I do not think that it can prevail against the scheme of the Act as set out above, for relaxation of detention by means of conditions attached to discharge. Ratio |
Nor do I think that any help can be derived from the intervals prescribed for the different case of a non-restricted hospital order patient, which apply equally to those still actually detained and those on leave of absence. Ratio |
For these reasons it seems to me that the FTT does indeed have the power, if it considers it right in all the circumstances, to impose conditions upon the discharge of a restricted patient which, if considered out of the context of an existing court order for detention, would meet the Cheshire West test, at least so lo... |
Whether it is right to do so in any particular case is a different matter. Ratio |
The power to do so does not seem to me to depend on the consent of the (capacitous) patient. Ratio |
His consent, if given, and the prospect of it being reliably maintained, will of course be very relevant practical considerations on the question whether such an order ought to be made, and will have sufficient prospect of being effective. Ratio |
Tribunals will at that stage have to scrutinise the reality of the consent, but the fact that it is given in the face of the less palatable alternative of remaining detained in hospital does not, as it seems to me, necessarily rob it of reality. Ratio |
Many decisions have to be made to consent to a less unpalatable option of two or several: a simple example is where consent is required to deferment of sentence, in a case where the offence would otherwise merit an immediate custodial sentence. Ratio |
I would, myself, for those reasons, allow this appeal. RPC |
This appeal concerns the Scots law of gratuitous alienations on insolvency. Ratio |
It raises three principal questions. Ratio |
First, there is a question as to the interpretation of the term adequate consideration in section 242(4)(b) of the Insolvency Act 1986 (the 1986 Act). Ratio |
Secondly, there is the question whether the Inner House was entitled to interfere with the Lord Ordinarys evaluation that the consideration given by Carnbroe Estates Ltd (Carnbroe) amounted to adequate consideration under that statutory provision. Ratio |
Thirdly, a question arose during the hearing as to the interpretation of the words in section 242(4) that empower the court to grant a remedy. Ratio |
The court invited and received written submissions from counsel for both parties. Ratio |
The question is whether the court has any discretion as to the remedy it may give. Ratio |
Factual background FAC |
Grampian MacLennans Distribution Services Ltd (Grampian) was, as its name suggests, a distribution services company. FAC |
It carried on business from a site at 9 Stroud Road, Kelvin Industrial Estate, East Kilbride (the Property). FAC |
The Property, which was Grampians principal asset and centre of operations, consisted of a warehouse, a vehicle workshop and a yard with a gatehouse. FAC |
Grampian purchased the Property in August 2005 for 630,000. FAC |
The buildings on the Property had been constructed in the 1970s and by 2014 were in need of further maintenance, repair and upgrading. FAC |
Grampians shareholders until June 2014 were Derek and Hazel Hunter, and Derek Hunter (Mr Hunter) was the sole director. FAC |
In March 2013 DM Hall, chartered surveyors, (DM Hall) valued the Property at 1.2m on the open market with the valuation falling to 800,000 if one were to assume a restricted marketing period of 180 days. FAC |
By early 2014 Grampian was in financial difficulty. FAC |
In May 2014 Mr Hunter consulted an insolvency practitioner to obtain advice as to whether he should put Grampian in members voluntary liquidation. FAC |
At that time Mr Hunter believed that the sale of the Property would enable Grampian to pay all its creditors and make a distribution to the shareholders. FAC |
His belief was supported by the DM Hall valuation of March 2013. FAC |
Shortly before the consultation in May 2014, Carnbroe had intimated through its solicitors an interest in purchasing the property for 950,000. FAC |
In mid-2014, another company, Bullet Express Ltd, also expressed an interest in acquiring the Property at a price of 900,000. FAC |
Mr and Mrs Hunter chose not to pursue those expressions of interest in the Property but instead sold their shares in Grampian to Mr Kevan Quinn (Mr Quinn), who became its sole shareholder and director with effect from about 16 June 2014. FAC |
At this time, Grampians total liabilities marginally exceeded 1m. FAC |
Sums in excess of 500,000 were due to HM Revenue and Customs (HMRC) and sums over 500,000 were due to National Westminster Bank plc (NatWest), which together were Grampians principal creditors. FAC |
NatWest held a standard security over the Property in respect of a LIBOR loan, which I mention below. FAC |
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