The Secretary of State for the Home Department v KE (Nigeria), Court of Appeal - Civil Division, September 19, 2017, [2017] EWCA Civ 1382

Resolution Date:September 19, 2017
Issuing Organization:Civil Division
Actores:The Secretary of State for the Home Department v KE (Nigeria)

Case No: C5/2015/3451

Neutral Citation Number: [2017] EWCA Civ 1382





Appeal No IA/16041/2012

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19/09/17

Before :





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Between :

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Catherine Rowlands (instructed by Government Legal Department) for the Appellant

Anthony Metzer QC and Alexis Slatter (instructed by Fadiga & Co Solicitors)

for the Respondent

Hearing date: 27 July 2017

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JudgmentLord Justice Hickinbottom :


1. This is an appeal by the Secretary of State against the decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 August 2015, allowing an appeal against her decision of 18 June 2012 refusing to revoke an order made on 19 July 2011 for the Respondent's deportation.

2. It gives rise to the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is ``a foreign criminal who has been sentenced to a period of imprisonment of at least four years'' for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights (``the ECHR'') to deport him. The Upper Tribunal decided that he does not fall within that category of foreign criminal. The Secretary of State disagrees.

Hospital Orders

3. By section 37(1) of the Mental Health Act 1983 (``the 1983 Act''), where a person is convicted of an offence punishable by imprisonment:

``... the court may by order authorise his admission to and detention in such hospital as may be specified in the order...''.

Such an order is known as ``a hospital order'' (section 37(4)), and it authorises the managers of a hospital to detain the offender in accordance with the provisions of the 1983 Act (section 40(1)(b)). Generally, the offender is treated as a patient who has been compulsorily admitted under Part II of the 1983 Act (section 40(4)).

4. The court may only make a hospital order if it is satisfied on the evidence of two medical practitioners that the offender is suffering from a mental disorder (i.e. ``any disorder or disability of the mind'': section 1(1)) which is of a nature or degree that makes it appropriate for him to be detained in a hospital for medical treatment, and such treatment is available for him; and, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, it is satisfied that a hospital order is the most suitable method of disposal (section 37(2)). A hospital order, when imposed, is for an indeterminate period. However, the responsible clinician in charge of an offender must regularly examine him and confirm that the conditions for detention are satisfied (section 20).

5. Under a hospital order without restriction, the power to release the individual from detention lies in the hands of clinicians. However, where such an order is coupled with a restriction order under section 41, discharge of the patient can only take place with the consent of the Secretary of State or order of the appropriate tribunal. A restriction order can only be made where, on sentence, it appears to the court that, having regard to the nature of the offence, the antecedents of the offender and his risk of committing further offences if set at large, it is necessary to make such an order for the protection of the public from serious harm (section 41(1)). No doubt because predictions about the future course of the relevant mental disorder - and, thus, about the risk posed - are difficult, restriction orders must now be made unlimited in time (section 41(1) of the 1983 Act, as amended by section 40 of the Mental Health Act 2007). An order remains in place until lifted by the Secretary of State (under section 42 of the 1983 Act) or discharged by the appropriate tribunal, i.e. in England, the First-tier Tribunal (under sections 73 or 75 of that Act). A direction by the Secretary of State or order of the tribunal releasing an offender into the community may be conditional (in which case, the offender is liable to recall) or absolute. Not only is the period of a restriction order indeterminate when imposed, it is common for orders never to be absolutely discharged because, even if an offender is conditionally discharged into the community, the risk of a recurrence of the mental disorder or its symptoms - and thus of danger to the public - remains.

6. The nature of a hospital order was explained by Mustill LJ in R v Birch (1990) 90 Cr App R 78 at page 85, in a passage recently approved by Lord Thomas of Cwmgiedd LCJ in R v Vowles [2015] EWCA Crim 45; [2015] EWCA Civ 56; [2015] Cr App R (S) 2 at [46]:

``A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of in-patient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.''

That emphasis is reinforced in the Secretary of State's guidance, ``Mental Health Act 2007: Guidance for the courts on remand and sentencing powers for mentally disordered offenders'' (March 2008), to which we were also referred. Section 37(8) of the 2003 Act effectively proscribes the imposition of a sentence of imprisonment or other order designed to punish the offender, if a hospital order is imposed.

7. Therefore, although of course the nature and seriousness of the offence for which an offender is convicted may indicate that he has a mental disorder that requires treatment, in considering a hospital order, the court's focus is forward looking. It is upon whether the most appropriate disposal for an offender who has a mental disorder is to be detained for treatment. Thus, a hospital order may be made even though there is no causal connection between the offender's disorder and the offence(s) he has committed (R v McBride [1972] Crim LR 322). Indeed, under section 37(2), in some circumstances a magistrates' court may impose a hospital order without any conviction.

8. A restriction order is similarly forward looking, and is not intended to mark the gravity of the offence or offences which have been committed. The test for such an order is whether the offender poses a future risk of serious harm to the public, which is, as Birch and Vowles made clear, a question of fact and judgment determined on all the evidence, not just by reference to past offending. The aim of a restriction order is therefore not to punish the offender, but to ensure that, where a mental condition leads to a risk to the public, an offender is detained until he can satisfy the Secretary of State or appropriate tribunal that treatment has resulted in the reduction of that risk to an appropriately low level to allow for his release on a conditional or absolute basis.

9. As Mustill LJ recognised in Birch, even where an offender has a mental disorder, there may still be an element of culpability which may otherwise merit punishment, e.g. where there is no connection between the mental disorder and the offence, or where the offender's responsibility for the offence is diminished but not wholly extinguished by his mental condition. In those circumstances, where the conditions in section 37(2) are met, given that a hospital order excludes any form of punishment, the sentencing court needs to consider the appropriate disposal with particular care. As Lord Thomas said in Vowles (at [51]:

``In the context of that wider question the matters to which a judge will invariably have to have regard include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release.''

10. Where the criteria for both a hospital order with a restriction order and a discretionary life or other indeterminate sentence are met, in considering the most appropriate disposal, the court must give appropriate weight to those factors and to the different release regimes. In particular, in relation to future risk, for an offender subject to an indeterminate sentence of imprisonment or detention in a young offender institution, the Parole Board considers the issue in the round; whilst the focus of a hospital order with a restriction order is specifically upon the existence, or potential recurrence, of a mental disorder making detention in a hospital for treatment necessary for the protection of the public.

11. In addition to hospital and restriction orders, the Crown Court has the power to direct that a person sentenced to imprisonment be removed and detained in a hospital rather than a prison, if appropriate with the same special restrictions as set out in section 41 (section 45A); so it is open to the court to impose a sentence of imprisonment but direct that the offender be detained in a hospital. The...

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