C/01/0702
Neutral Citation Number: [2001] EWCA Civ 1901
IN THE SUPREME COURT OF JUDICATURE   
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)
Royal Courts of Justice
Strand, London WC2

Tuesday, 13th November 2001
B e f o r e :

LORD JUSTICE CLARKE
LORD JUSTICE DYSON
LORD JUSTICE MANCE
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THE QUEEN ON THE APPLICATION OF WIRRAL HEALTH AUTHORITY AND WIRRAL BOROUGH COUNCIL
Respondents
- v -

MENTAL HEALTH REVIEW TRIBUNAL
Defendant
and

DE
Interested party/appellant
and

(2) WIRRAL AND WEST CHESHIRE COMMUNITY NHS TRUST            (3) ASHWORTH SPECIAL HOSPITAL AUTHORITY
Interested parties
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MR. S. VAUGHAN (instructed by Darwen Law Chambers Solicitors, Darwen) appeared on behalf of the Appellant DE.
MISS F. MORRIS (instructed by Messrs Hill Dickinson, Liverpool) appeared on behalf of the Respondents.
MR. R. CLAYTON appeared on behalf of the Ashworth Hospital Authority.
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J U D G M E N T
1.	LORD JUSTICE DYSON: DE is 51 years of age and has been detained in Ashworth Hospital since 1993. He has a long history of violence and drug abuse. On 1st May 1992 he was sentenced to four years' imprisonment for threatening to kill his wife. In ordinary circumstances he would have expected to have been released on 24th February 1994. Subsequently, however, he was diagnosed as suffering from paranoid schizophrenia and a paranoid and personality disorder.
2.	On 15th March 1993 he was transferred to Ashworth Hospital pursuant to a transfer direction made by the Secretary of State under section 47(1) of the Mental Health Act 1983 (“the Act”). The making of the transfer order meant that he was treated as if he had originally been sentenced by the court to a hospital order under section 37 (see section 47(3)). The transfer order was made in conjunction with a restriction direction made under section 49(2), whose effect was to treat him as if the restriction direction had been imposed under section 41. Pursuant to section 50 the restriction direction expired on 24th February 1994, the date on which DE would ordinarily have been released from his original sentence of imprisonment.
3.	On 4th April 2000 he applied to the Mental Health Tribunal (“the Tribunal”) for the grounds of his detention to be reviewed. The details of the history of the proceedings before the Tribunal are no longer material. Suffice it to say that on 20th November 2000 the Tribunal ordered him to be discharged on 8th January 2001. The evidence before it included that of Dr. Kulupana, DE's then responsible medical officer, who recommended his release into the community. The Tribunal said that it was satisfied that DE was no longer suffering from mental illness or any other relevant form of mental disorder which made it appropriate for him to be detained in a hospital for mental treatment, and that it was satisfied that it was not necessary for his health or safety or for the protection of others that he should receive such treatment. That decision was challenged in the current proceedings by Wirral Health Authority and by Wirral Borough Council on a number of grounds, including that the Tribunal failed to give adequate reasons for its decision. Scott Baker J upheld the challenge and quashed the Tribunal's decision on that ground. I shall refer to the two applicants as “Wirral”.
4.	The matter was made more complicated, however, by the intervention of a Dr. Finnegan, a consultant forensic psychiatrist at Ashworth Hospital. He replaced Dr. Kulupana as DE's responsible medical officer on about 20th December 2000. Dr Finnegan took the view that DE was not fit to be discharged and disagreed with the Tribunal's decision. Together with Dr. Sharma, another consultant psychiatrist, and Mr Griffiths, an approved social worker, he decided that DE fulfilled the conditions for detention in hospital laid down by section 3 of the Act. Accordingly, on 5th January Dr Finnegan and Dr Sharma completed forms recommending DE's detention under section 3. Exercising his powers under section 23(2)(a) Dr Finnegan discharged DE from detention under section 37 and Ashworth Hospital accepted Mr. Griffith's application to detain DE under section 3. Thus, Dr. Finnegan did not make an order for the discharge of DE in the belief that he, DE, no longer fulfilled the criteria for detention under section 37. On the contrary, he thought that DE should be detained. In his report recommending detention under section 3, Dr. Finnegan said that DE was suffering from “active paranoid schizophrenia”. The report of Dr. Sharma was to similar effect. It followed that these doctors disagreed with the decision of the Tribunal. Dr. Finnegan took the steps that he did because he had been advised that it was an administrative requirement for the making of a fresh order of detention that he should do so. Dr. Finnegan summarised his thinking in a file note dated 20 February 2001, in these terms:
“The decision that I made on 5th January 2001, to discharge DE from his section 37 (Notional) order was not made for clinical reasons. The decision was taken on legal grounds as I was advised that it would be legally inappropriate for DE to be simultaneously detained under both sections 3 and 37 of the Mental Health Act 1983.”
5.	The result of these events was that DE continued to be detained at Ashworth Hospital after the date that had been set for his discharge by the Tribunal.
6.	On 18th January 2001 Wirral applied for judicial review of the Tribunal's decision of 20th November on the grounds that it was irrational and that no reasons had been given for rejecting the strong body of evidence that had advised against discharge. On 23rd February 2001 Wirral applied for judicial review of the decision by Dr. Finnegan of 5th January to order the discharge of DE from detention on the grounds that it too was unlawful.
7.	Before the judge the Tribunal conceded that it had acted unlawfully in reaching its decision, in that it was not adequately reasoned, and it consented to an order quashing its decision. Dr. Finnegan also consented to an order quashing his decision to discharge. Despite these concessions the judge considered the issues for himself, and in a full and careful judgment explained why he was satisfied that the concessions were properly made. The judge was right not simply to accept the concession, not least because DE had been joined as an interested party, and was not willing to consent to the quashing of either order. The judge held that the Tribunal's decision of 20th November was bad in law for the reasons conceded by the Tribunal. As for the decision of Dr. Finnegan, the judge held that the legal advice which formed the basis for his decision to discharge under section 23(2)(a) was wrong. He held that DE could be lawfully detained simultaneously under sections 3 and 37 following the decision of this court in R v North West London Mental Health NHS Trust, ex parte Stewart [1997] 4 All ER 871.
8.	There has been no challenge before this court to the decision of the judge, insofar as he held that both decisions were unlawful in the respects that he indicated. It was, however, one of the arguments advanced in the court below on behalf of DE that has formed the central plank of Mr Vaughan's submissions in this court. The judge summarised it and dealt with it at paragraph 79 of his judgment as follows:
“Mr. McDermot [leading counsel for DE] made some argument on the basis that the hospital order under section 37 is in the nature of a criminal penalty. It is true that it is a direct alternative to other sentencing options: see section 37(8). It was imposed in this case on transfer from prison, initially via section 47 of the Act, but the sentence of imprisonment as such has long since expired. Mr McDermot argues that because of the criminal context giving rise to section 37 orders, whether imposed directly by a criminal court, or arising as a result of transfer to hospital from prison, that once discharged they are not renewable full stop; i.e. whatever the circumstances. I cannot accept this where the discharge is in the circumstances unlawful.”
9.	It is convenient before I go further to refer to the principal relevant statutory provisions. Section 37 empowers a criminal court to order the detention of a patient in hospital for treatment rather than commit him to prison. This form of detention is defined by the statute as a “hospital order”. A criminal court may impose a hospital order under section 37 if it is satisfied that, on the evidence of two registered medical practitioners, the following criteria are fulfilled:
“(2)(a)... the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either -
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;...
(b) . . . 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, that the most suitable method of disposing of the case is by means of a [hospital order]”. 
10.	The criteria for the making of a hospital order under section 37 are the same as the criteria for the making of an application for admission for treatment under section 3. Section 47 empowers the Secretary of State by warrant to direct the transfer of a prisoner to hospital. Again the criteria for the making of such a warrant are the same as those for the making of a hospital order or for an application under section 3. It is not necessary to set them out. Section 47(3) provides that a direction made under section 47 shall take effect so that the patient is detained in hospital as if he had been the subject of a hospital order under section 37. A hospital order takes effect indefinitely subject to the requirements that it be renewed after six months in the first year and thereafter annually, pursuant to section 20 (see section 40(4) and paragraphs 2 and 6 of Part 1 of Schedule 1 to the Act.) The same requirements of renewal take effect in respect of patients detained under section 3. Section 72 defines the criteria that are to be applied by a tribunal considering a patient's application for discharge from detention under section 3 and section 37. The same criteria apply to patients detained under each of these sections and they mirror the admission criteria applicable to each case as well.
11.	Mr. Vaughan submits that the judge was wrong to quash the decisions, even though he accepts that they were unlawful. The main thrust of his criticism of the judge is directed to the quashing of the decision of the Tribunal. He relies on a passage in de Smith, paragraph 5-048, page 259:
“The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows: (1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction.
Under the terminology of void and voidable decisions, this proposition raises a paradox, namely, that a decision, although technically void, is in practice voidable. Such a paradox is, however, circumvented if we abandon those terms terms which “lead to confusion” and instead use the terms lawful and unlawful decisions. Decisions are thus presumed lawful unless and until a court of competent jurisdiction declares them unlawful. There is good reason for this: the public must be entitled to rely upon the validity of official decisions and individuals should not take the law into their own hands. These reasons are built into the procedures of the application for judicial review, which requires for example an application to quash a decision to be brought within a limited time. A decision not challenged within that time, whether or not it would have been declared unlawful if challenged, and whether or not unlawful for jurisdictional error, retains legal effect. So does a decision found to be unlawful but where a remedy is, in the court's discretion, withheld. The language of void and voidable cannot, however, accommodate such an effect, as it would insist that a void decision, being void ab initio, is devoid of legal consequences and that a voidable decision is capable of being set aside.” 
12.	Mr. Vaughan submits that the decision of the Tribunal in the instant case was presumed to be valid. Once an order for discharge has been made nothing can change that. There can be no going back. The reason why a discharge of a patient from detention under section 37 cannot be struck down as a nullity is that a section 37 order is or is part of a criminal sentence, and once a criminal sentence has come to an end it cannot be reconstituted. He relies by way of analogy on the principle that certiorari will not lie to quash an acquittal of a defendant after a trial, even if, for example, the decision of the acquitting court is unlawful because it has been tainted by bias, or the trial has been conducted in breach of natural justice.
13.	A number of cases in which this principle has been applied were considered by the Divisional Court in R v Hendon Justices ex parte DPP [1994] QB 167, 175 and following. Scott Baker J considered this decision at paragraphs 59 to 63 of his judgment in the present case and relied on it to reach the conclusion that, if he quashed the Tribunal's decision, then it “becomes a nullity”. In the Hendon Justices case the justices dismissed informations on the ground that the prosecutor had not appeared before them, although they knew that the prosecution was to be represented. It was held by the Divisional Court that the decision of the justices was so unreasonable that no reasonable bench could have arrived at it. Accordingly, the decision was a nullity. An order of mandamus was issued requiring the justices to hear the informations according to law. Mr. Vaughan sought to distinguish this decision by submitting that the criminal charges were unaffected by the unlawfulness of the justices' decision, so that there was still something to go to trial. In the present case, submits Mr Vaughan, once the section 37 detention order was discharged, there was nothing that could go back to the Tribunal for reconsideration.
14.	I cannot accept Mr Vaughan's argument and would to a large extent adopt the argument advanced by Miss Morris and Mr Clayton. They both submitted that the premise on which Mr Vaughan's argument was based, namely that a section 37 order is or is part of a criminal sentence, is wrong. In my view, even if this premise were well founded, Mr Vaughan's argument would be unsound. But I prefer to express no view as to whether it is in fact well founded.
15.	In examining Mr Vaughan's basic argument I find it necessary to go back to first principles. Where an inferior tribunal commits an unlawful act the High Court has the power to review that act, declare that it is unlawful, quash it and order a reconsideration by the tribunal. It is not obliged to exercise any of these powers. Whether it chooses to do so will be a matter for its discretion, and relief will be granted or withheld according to the facts and circumstances of the particular case. Relief may be withheld, for example, because the challenge has been unreasonably delayed or because, in the light of intervening events, the grant of relief would be futile. Many other examples can be given. But absent factors such as these, once the court has concluded that the decision of a public law body exercising public law functions is unlawful, it will usually quash the order.
16.	What then is the effect of quashing an order? In my judgment, it is retrospectively to invalidate the unlawful act. In Hoffmann-La-Roche v Secretary of State for Trade and Industry [1975] AC 295, 365F, Lord Diplock said:
“It would, however, be inconsistent with the doctrine of ultra vires . . . if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had legal effect upon the rights or duties of the parties to the proceedings. . .” 
17.	In Boddington v British Transport Police [1999] 2 AC 143, 155C, Lord Irvine of Lairg LC said this:
“Subordinate legislation or an administrative act is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all.” 
18.	So why should this well-established principle of public law not apply in the present case? In my judgment, the fact that, as I have assumed, the section 37 order is or is part of a criminal sentence provides no answer at all. Why should that make any difference? I can see no reason in principle or logic why the effect of a quashing order should vary according to whether the decision that is quashed is one that is made in the criminal rather than the civil sphere. I found Mr Vaughan's attempt to distinguish the Hendon Justices case wholly unconvincing. That was plainly a criminal case. On Mr Vaughan's argument, once the informations were dismissed by the justices, the criminal proceedings were at an end, and yet the effect of quashing the dismissal of the informations was to treat them as never having been made and to revive the proceedings. So, too, here. It seems to me that the effect of quashing the decision of the Tribunal was to treat it as never having been made and to restore DE to his status as a person detained under section 37. The acquittal cases referred to by Mann LJ in his judgment in the Hendon Justices case are an exception to the general rule that unlawful decisions by an inferior court can be quashed by the High Court. I see no reason to extend the scope of that exception beyond cases of acquittal following a trial. At all events, I would refuse to extend it to a case such as the present. For all these reasons I would reject Mr Vaughan's principal submission.
19.	His alternative submission involved a consideration of Article 7(1) of the European Convention on Human Rights, which provides: 
“No one shall be held to be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
20.	As I understood his argument, it was that the transfer order under section 47, which took effect as a section 37 order, was incompatible with Article 7(1). If right, that would entail the proposition that section 47 is incompatible with the Convention. But in my judgment Article 7(1) is not engaged here at all. The second sentence of Article 7(1), which is the one invoked by Mr. Vaughan, is concerned to prevent the imposition by the sentencing court of a penalty that is heavier than that which was applicable at the time that the criminal offence was committed. But even if a section 37 order is to be regarded as a penalty, both sections 37 and 47 were part of the law when DE committed the offence for which he was initially sentenced to four years' imprisonment. There is no substance in this alternative submission.
21.	For all these reasons I would dismiss this appeal.
22.	LORD JUSTICE MANCE: I agree with both the reasoning and the conclusions of Lord Justice Dyson and add only a very few words. The thrust of Mr Vaughan's argument was that the criminal substratum of the powers provided by sections 37 and 47 of the Mental Health Act 1983 raises special considerations. He then sought to build on the questionable and, on any view, exceptional principle, relating to acquittal after trial by a properly constituted tribunal, which was established by a majority in R v Simpson [1914] 1 QB 66 (see R v Hendon Justices, ex parte DPP [1994] QB 167,175, in which the court itself expressed a leaning towards the minority view of Scrutton LJ in R v Simpson). However, even if one were to accept the majority view in R v Simpson, I do not regard the present case as remotely analogous to that case. Nor do I see any reason here for further qualification of the general principle which R v Hendon Justices lays down, that is that the usual effect of quashing an order is to invalidate it for all purposes as from the beginning (see Boddington v British Transport Police [1999] 2 AC 143, the passage in Lord Lairg's speech which my Lord has read). A contrary decision would, on Mr Vaughan's own argument, also create a most unsatisfactory distinction between the closely parallel situations of detention under a hospital order under section 37 or 47. In a similar case to the present arising in the latter context, Mr. Vaughan's argument could have no impact, as he acknowledges and as the recent decision of Stanley Burton J in Ashworth Hospital Authority v H shows.
23.	LORD JUSTICE CLARKE: I agree with both judgments. The appeal will be dismissed.
Order: Appeal dismissed with costs; assessment of the appellant's costs.