CO/1516/2002
Neutral Citation Number: [2002] EWHC 1400 (Admin)
IN THE HIGH COURT OF JUSTICE      
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice
The Strand
London WC2

Thursday 27 June 2002
B e f o r e:

MR JUSTICE BURTON

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THE QUEEN ON THE APPLICATION OF M

-v-

NOTTINGHAMSHIRE HEALTHCARE NHS TRUST

AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT

AND

THE GOVERNOR OF HM PRISON FULL SUTTON

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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
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Official Shorthand Writers to the Court)
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MR P BOWEN (instructed by BINDMAN & PARTNERS, LONDON WC1X 8QB) appeared on behalf of the Claimant.
MR R CLAYTON QC (instructed by HEMPSONS SOLICITORS, PORTLAND ST, MANCHESTER, M1 3LF) appeared on behalf of the first Defendant.
MISS J RICHARDS (instructed by THE TREASURY SOLICITOR, LONDON SW1H 9AT) appeared on behalf of the second Defendant.
THE THIRD DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED
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J U D G M E N T
1.	MR JUSTICE BURTON: In May 1989 the claimant, P.M, was convicted of three offences of rape, two of buggery, two of assault and two of false imprisonment. They were very serious offences indeed by a man who already had a considerable number of previous convictions. He was sentenced to life imprisonment.
2.	In June 1998 a psychiatric assessment of him was carried out by Dr Keitch of the Rampton Hospital. He was recognised as classifiable as psychopathically disordered within the Mental Health Act 1983 (“the MHA”) but there was considerable doubt and dispute about his treatability. Dr Keitch said as follows:
“Various opinions have been expressed with regard to treatability and unfortunately those who were more optimistic have not been able to proceed with therapeutic interventions. As a result P.M has become “stuck” within the Prison System and is, at present, going nowhere.” 
3.	On January 14th 2000 a transfer direction was made under section 47 of the MHA and a restriction direction under section 49. Those sections, in relevant part, read as follows:
“47(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners-
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that the mental disorder from which that person 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;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital... as may be specified in the direction; and a direction under this section shall be known as “a transfer direction”.”
“49(1) Where a transfer direction is given in respect of any person, the Secretary of State, if he thinks fit, may by warrant further direct that that person shall be subject to the special restrictions set out in section 41 above; and where the Secretary of State gives a transfer direction in respect of any such person as is described in paragraph (a) or (b) of section 48(2) above, he shall also give a direction under this section applying those restrictions to him.
(2) A direction under this section shall have the same effect as a restriction order made under section 41 above and shall be known as “a restriction direction”.” 
4.	The cross reference to section 41 is to those who have followed a different route, namely where a hospital order is made in respect of an offender by the Crown Court.
5.	The claimant was transferred by the Home Secretary under sections 47 and 49, based upon the reports of Dr Keitch and a Dr Shaw, to Rampton Hospital on 17th January 2000. One of the programmes on offer as a part of an overall treatment package was the Sex Offenders' Treatment Programme (“SOTP”). In June 2000 it was decided that an assessment should take place with a view to his commencing the SOTP.
6.	Under section 49(3) of the MHA there is a requirement for an annual report by a patient's responsible medical officer (“RMO”) to the Secretary of State in relation to any person subject to a restriction direction. Dr Keitch, as his then RMO, concluded in such report made on 15th December 2000 as follows: 
“In summary therefore Mr M has had a good first year at Rampton Hospital and has been positively engaged in treatment. He now has a comprehensive treatment plan designed to address all his needs and this will be proceeded with over the coming months and years. He remains appropriately detained at Rampton Hospital and is not suitable for either discharge to the community or transfer back to prison. Until such time as he has completed the relevant therapeutic work he would represent too high a risk to the general public to warrant release.” 
7.	Pursuant to section 74 of the MHA a person subject to a restriction direction can apply to a Mental Health Review Tribunal (“the Tribunal”) and the claimant did so. He did so, it seems, not for the purpose of applying for a discharge or release, which was obviously not conceivably possible, but for a general review of his position, including, as it seems, a review of the question of his diagnosis. There had been suggestions that he suffered from Asperger Syndrome. He may have hoped for some extra-statutory recommendations.
8.	The hearing in the event took place in December 2001. Section 74 provides as follows in material part:
“(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction direction...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...and
(b) if he notifies 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.”
(2) If in the case of a patient not falling within subsection (4) below
(a) the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and
(b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged, the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.
(3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the tribunal has made a recommendation under subsection (1)(b) above, transfer the patient 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:” 
9.	I need not read subparagraph (4).
10.	The decision was therefore firmly in the hands of the Secretary of State and a number of options arose, depending upon the conclusion of a tribunal. These are, by virtue of section 74, as follows: (1) that he should continue to be detained in the hospital or (2) that he would be absolutely or conditionally discharged from the hospital, but return to prison.
11.	Section 50 of the MHA, which is the section which has been central to this application, is also relevant, although the issue before me has not related to the decision of the Tribunal but to events in March 2002. However, so far as the Tribunal is concerned, that section, to which I shall return, gives further options to the Secretary of State depending upon a recommendation by the Tribunal, if it be given, including release on licence.
12.	For the purposes of the proposed Tribunal hearing there were a number of reports prepared. They included:-
(1) a report dated 3rd August 2001 by Dr Krishnan, who had by then taken over from Dr Keitch as the claimant's RMO. This concluded as follows:
“In regard to treatment, although he has been at Rampton Hospital for approximately twenty months, it has been difficult...to gauge the extent to which he is benefiting from the psychological interventions offered to him. At a recently held Treatment Planning Meeting, it was proposed that Mr M be offered a place on a future Sex Offender Treatment Programme (SOTP) that would as much allow ongoing assessment as a treatment intervention.
At this time, no recommendations in terms of a transfer or discharge are being made.” 
13.	On 24th August 2001 he was transferred to a different ward called Evans Ward and in September 2001 he started on the SOTP. By this time Dr Hayden had taken over from Dr Krishnan as his RMO; Dr Krishnan was now clinical director of the Personality Disorder Directorate at Rampton Hospital.
(2) A report dated 2nd November 2001 by a Professor Grubin. Professor Grubin, a professor in the Department of Forensic Psychiatry in Newcastle was instructed by the claimant's solicitors and assessed the claimant in September 2001. His conclusions included the following:
“At present I believe that Mr M is appropriately detained in hospital. Continuation of his treatment programme is required, both in terms of his own health and vulnerability as well as to reduce further his risk of reoffending (although in my opinion this risk relates more to dishonesty than to sexual recidivism).” 
14.	On 12th December 2001 the Tribunal reached its conclusion which was, as had been anticipated, that the claimant would not be entitled to a discharge. The Tribunal recorded the following reasons for its decision: 
“It is not in dispute that this patient continues to suffer from psychopathic disorder and needs to remain in hospital for treatment and for his own safety and that of others; and we so find. No form of discharge has been sought. It is also accepted that the patient is appropriately placed at present in Rampton Hospital.
The patient has begun to engage in psychotherapeutic treatment, including in particular the Sexual Offenders Treatment Programme, which at Rampton Hospital takes a very different form from that available in the Category A prison from which he was transferred to the mental health system and may be more appropriate for the features of the patient's personality disorder. The process of assessment of the patient is continuing. The current SOTP course is in its early days; and it is too early to say whether and to what extent the patient will ultimately respond or benefit; but there are prospects that he will and we have no doubt that the present treatment plan at Rampton Hospital should be pursued.” 
15.	On 12th January 2002 Dr Brugha, Professor of Psychiatry at the University of Leicester, prepared a report which it had been intended should be ready for use at the Tribunal hearing but had been delayed. He was consulted by Rampton Hospital and had examined the claimant on 8th September 2001. The purpose of the report was recorded as follows:
“P.M is currently an inpatient at Rampton Hospital following transfer from prison for assessment under Section 47/49 of the Mental Health Act.
Mr M has been seen and examined by Dr Valerie Hawes...a forensic psychiatrist who has an interest in lifers who may suffer from Asperger Syndrome and she had raised the question as to whether Mr M might have Asperger Traits [that is some features of Asperger Syndrome although not necessary all the criteria required for a diagnosis]. Dr Hawes raised the question as to whether such an approach to understanding Mr M could be helpful in taking forward his rehabilitation.” 
16.	Professor Brugha was not at all sure about his diagnosis, thinking that it was unlikely that the claimant had Asperger syndrome, although possibly he was subject to a different syndrome called PDA. But he was satisfied that he had a serious personality disorder. He said this as to treatment in those circumstances:
“As I have not been able to clearly confirm a finding of an autistic spectrum disorder it is perhaps not for me to speculate on treatment in this case.” 
17.	He added:
“Accounts of Mr M seem to indicate that he has gained some insight into his problems. My sense is that this is still quite superficial.” 
18.	As to prognosis he said:
“However, if PDA is the correct category for P., unfortunately we have no long term longitudinal data on which to base a more precise prediction of future behaviour and thus an informed risk assessment.” 
19.	His conclusion was as follows:
“...I have little doubt that if P. returned to a purely custodial setting in which there was no understanding of his deficits and no capacity to work with him, the risk of repetition of his former antisocial behaviours on returning to the community would be considerable.
I am impressed by the level of understanding demonstrated in the psychological reports I have seen at Rampton Hospital and believe that a long term programme of rehabilitation within secure NHS settings followed by a gradual, closely and skilfully supervised return to the community will significantly reduce risk to the public in the longer term.” 
20.	Two days later there was the next annual RMO report to the Secretary of State, by Dr Hayden. He reported as follows:
“Since transfer to Evans Ward Mr M continues to undergo further assessment/treatment. It is not yet appropriate to comment in detail as to whether Mr M will benefit from treatment. His interpersonal style causes difficulties in the ward environment. Mr M is controlling, demanding, undermining of the therapeutic regime and persists in dictating his own treatment needs and when they should be granted.” 
21.	He ended the report:
“In summary, Mr M continues to undergo assessment and treatment of his personality disorder. At this point in time there is no conclusive indication that he has benefited from treatment. He remains appropriately detained at Rampton Hospital under the classification of Psychopathic Disorder.” 
22.	On the evidence adduced in these proceedings by the defendants things deteriorated from there onwards. An account is given by Dr Hayden of what he says occurred between January and March 2002 in paragraph 20 of his first witness statement and paragraphs 9 and 10 of his second, setting out a substantial number of critical incidents relating to the claimant.
23.	On 6th March 2002 there was a meeting between Dr Hayden, Dr Peckitt, the Consultant Forensic Psychologist at Rampton and other members of the hospital staff, and a consensus was reached that a recommendation should be made that the claimant should be returned to prison on the basis that the claimant:
“(a) had behaved in a way that interfered with therapy;
(b) was undermining of the therapeutic ethos of the ward;
(c) had attempted to subvert hospital security;
(d) was not demonstrating benefit of note from the global package of treatment available to him;
(e) lacked maturity;
(f) had not yet reached a stage where he could meaningfully contemplate treatment;
(g) might acquire from his continued participation in the Sex Offender Treatment Programme ('SOTP') a veneer of knowledge which would make it difficult to assess the true extent of his progress in the Programme.” 
24.	Dr Hayden relates that he then, on 7th March 2002, discussed the issues with Dr Krishnan, who supported the proposal that a request be made for the claimant to be remitted to prison, and on 8th March 2002 he informed Dr Evershed, a consultant clinical psychologist at Rampton involved with the SOTP, of the
“... on-going problems that were being experienced in [the claimant's] management, and informed her that any apparent benefits and apparent improvements as a result of the SOTP programme and other psychological interventions were not reflected in his behaviours and attitudes outside group settings. Dr Evershed accepted these reasons for requesting that [the claimant] be returned to prison.” 
25.	The claimant's solicitors sought in correspondence, after issue of proceedings, to discover the position in relation to Mr Jones who was also on the staff involved in the SOTP and who, the claimant believed, would have been opposed to his transfer. After a good deal of delay the answer was eventually given by the second defendant's solicitors that it was Mr Jones' view, as it was that of Ms Evershed, that the claimant should only continue to receive treatment at Rampton if members of the wider clinical team felt confident that they could address his interpersonal difficulties and therapy-interfering behaviours in an effective manner.
26.	Consequently, on 8th March 2002, Dr Hayden wrote as follows to the Secretary of State:
“Since moving to Evans Ward Mr M has repeatedly presented significant management problems and attitudes and behaviour demonstrating that he is not benefiting from the overall treatment package available to him. He has consistently demonstrated a lack of meaningful reflection on his behaviour and attitudes. Until such time as he is in a position to contemplate and meaningfully reflect on his attitudes and behaviour he will not meaningfully benefit from treatment, and there is no evidence that change is imminent in this respect.
Mr M has repeatedly resisted accepting necessary therapeutic challenge from his Named Nurse and RMO. Mr M has repeatedly attempted to dictate his own treatment needs. He has this month demanded that his Named Nurse be changed.
At present Mr M is ward based as he is the subject of investigation into an alleged sexual assault on a fellow patient.
Reasons for requesting urgent return to prison include recent behaviours of Mr M whereby hospital security has been compromised, a recent threat to a staff member in which Mr M threatened to put the staff member's head through the window, and his general undermining effect on the therapeutic ethos of the ward.” 
27.	This amounted to a notification pursuant to section 50(1) of the MHA to which I now turn.
“(1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may-
(a) by warrant direct that he be remitted to any 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; or
(b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,
and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.” 
28.	The only authority specifically relating to this section, to which my attention has been drawn by the parties, is the case of R v Home Secretary ex parte Hickey [1995] QB 43. At page 53 of that report Rose LJ delivering the lead judgment in the Court of Appeal addresses submissions made by counsel on behalf of the Secretary of State and records them as follows:
“Equally, medical judgment is relevant to the release from hospital under section 50, and Parliament cannot have intended... that the Act of 1983 provisions should be superseded by the Act of 1991. Section 50(1)(b) means that, without favourable medical notification, powers relating to release on licence from prison do not apply. He accepted that, once the medical precondition in section 50(1) is satisfied, the Secretary of State must either send the person back to prison...or he must himself release the patient under section 50(1)(b).
[Counsel] also asserted that the Secretary of State draws a distinction between the view of a mental health review tribunal, on the one hand, and the other medical practitioners to whom section 50(1) refers. If a tribunal notifies him of the circumstances identified in section 50(1), he could not, submitted [counsel], without laying himself open to a challenge of irrationality, fail to exercise the discretionary powers of remittal to prison, release or discharge which the subsection confers.” 
29.	The section, as can be seen, refers therefore to a situation in which a notification or recommendation may be given from three different areas. Although there is reference to “another registered medical practitioner”, I am informed by the Secretary of State that that is, in practice, restricted to a situation in which such registered medical practitioner is for some reason standing in for the responsible medical officer, and if it were any other medical practitioner plainly any such recommendation would have to be looked at very carefully indeed by the Home Secretary to see whether it was appropriate to act upon it. But, leaving that aside, the two parties who have a potential role therefore are a tribunal, which has not arisen in this case as I have earlier made clear, and the RMO who will be the relevant responsible medical officer in charge of the patient in question.
30.	The submissions of counsel for the Secretary of State summarised by Rose LJ, to which I have referred, make it plain that if a tribunal notifies the Secretary of State of the circumstances then the Secretary of State is almost bound to follow what the tribunal recommends. If however it is the responsible medical officer then the implication is that the Secretary of State is not bound to follow. And indeed all parties in this case have proceeded upon the basis that the Secretary of State is not obliged, nor entitled, to rubber stamp such a recommendation, but must act on the basis of it after giving due consideration to the position.
31.	Mr Parkin, on behalf of the Home Secretary, gave evidence in his witness statement as follows:
“3.... Whilst initial reports indicated that the Claimant had positively engaged with therapy, Dr Hayden's report dated 14th January 2002 had raised doubts that the Claimant had benefited from treatment. Dr Hayden had now reported that the Claimant had presented significant management problems and had demonstrated that he was not benefiting from the treatment available to him.
4. In all the circumstances the conclusion was reached that the criteria in Section 50 of the 1983 Act had been satisfied, in that no effective treatment for the Claimant's disorder could be given to the Claimant in Rampton Hospital and accordingly a warrant directing his remittance to prison should be signed on behalf of the Secretary of State. There appeared to be no reason to doubt the clinical judgment of the Claimant's RMO in the circumstances of this Claimant's case.”
32.	Dr Hayden explains in his evidence why they did not give the claimant advance notice of the decision in paragraph 17 of his second witness statement as follows:
“...we were influenced by the following factors: (a) that Mr M remained deceitful and uncooperative;
(b) that he was also deeply manipulative and controlling, and might use the days before his return to prison to inspire or provoke fellow patients into their own breaches of Hospital rules and security;
(c) that, as evidenced by the discoveries when his room was searched on 1 March 2002 [an incident to which he had earlier deposed], Mr M had no respect for Hospital rules or policies - especially those concerned with security;
(d) that the propensities revealed by his index offence were still present, and therefore presented a real risk to hospital security.” 
33.	There was however a care programme approach (“CPA”) meeting held on 20th March 2002, attended by the claimant and a representative of his solicitors and by Dr Hayden and his multi-disciplinary team, when the decision to return the claimant to prison was disclosed and discussed. By that time, of course, the decision was already made by the Home Secretary, based upon the notification given to him; indeed the claimant was removed six days later on 26th March. But the contents of Professor Grubin's and Professor Brugha's reports were discussed. Dr Hayden states as follows in paragraph 27(c) of his second witness statement:
“Whilst acknowledging Professor Grubin's and Professor Brugha's expertise and status in the psychiatric world, I must respectfully point out that:
(i) they were not involved in the day-to-day care of Mr M;
(ii) Mr M is very plausible, masterly at deceit and has the ability to “talk the talk”, so that he can convince even experienced professionals of whatever it is he wishes to convey regarding treatability and other issues.
(iii) Professor Grubin's and Professor Brugha's views do not alter my opinion, the opinion of the multi-disciplinary team, and that of Dr Peckitt and Dr Krishnan that the decision to recommend that Mr M be returned to prison was the correct one, as effective treatment could not be provided for him.” 
34.	These proceedings were issued on 26th March and an ex parte order restraining the claimant's transfer from Rampton was made by Crane J on the afternoon of that day, but the claimant had already made the transfer before notice of the order, and Crane J revoked his order on the following day. Permission to apply for judicial review was given by Gibbs J on 5th April 2002.
	The Nature of the Claimant's Case.
35.	The claimant, for whom Mr Paul Bowen has appeared, joined three defendants, the Governor of HM Prison Full Sutton only for the purpose of making any order effective. The relevant defendants are the first defendants, Nottinghamshire Healthcare NHS Trust, Rampton Hospital (“the Hospital”) for whom Mr Richard Clayton QC has appeared, and the Secretary of State for the Home Department as second defendant, for whom Miss Jenni Richards has appeared.
36.	The claims have, as will appear, fallen into three categories: (i) claims originally made against the hospital, but which are no longer pursued; (ii) claims which were originally made against both defendants and remain; (iii) claims which have been sought to be made by amendment against both defendants in the course of this hearing. I shall consider these in turn.
	(1) Claims against the Hospital.
(a) A claim that the decision to notify or recommend return to prison was unlawful as irrational or as disproportionate interference with the claimant's Article 8 rights. This is not now pursued.
(b) A claim that that decision was in breach of natural justice and/or of the requirements of Article 8, because no or no adequate reasons were given by the Hospital for its decision to notify; this is not pursued.
(c) A claim that that decision was in breach of natural justice and/or the requirements of Article 8, because no opportunity was given to the claimant to make informed representations; this was pursued.
(d) A claim that the decision was in breach of the legitimate expectation of the claimant that he would be permitted to complete the SOTP; this was pursued.
(e) A claim that the Hospital was obliged, when giving its notification to the Secretary of State, to put before him (i) the report by Professor Brugha of 12th January 2002 (“the Brugha report”); (ii) the alleged fact that there were opposing views to that of Dr Hayden in this team as to the treatability of the claimant and/or his return to prison. This was loosely described in the course of argument as 'dissension in the ranks'. This claim was only raised and sought to be formulated by amendment on the second day of the hearing.
(2) Claims against the Home Secretary:
(i) A claim, as it had been formulated but not pursued against the Hospital, that the decision by the Home Secretary on 8th March 2002 to remit to prison was unlawful as irrational or as a disproportionate interference with the claimant's Article 8 rights; this was pursued.
37.	It was originally put forward by express reference to the existence of the decision of the Tribunal of December 2001, and the absence of any relevant change of circumstance since that decision. By further proposed amendment on the second day of the hearing two additional particulars of alleged irrationality, or failure to take into account relevant considerations, were put forward by Mr Bowen: (a) failure to take into account the Brugha report; (b) failure to consider an alternative to remission to prison, namely either retention in Rampton Hospital with a different RMO and a different clinical team or transfer to a different secure hospital.
(ii) A claim of breach of natural justice, as formulated but not pursued against the Hospital, by reference to failure to give reasons; this was pursued.
(iii) A claim of breach of natural justice, as formulated against the Hospital, by reference to a failure to give an opportunity for informed representations; this was pursued. (iv) The same claim for legitimate expectation.
	The Proposed Amendments:
38.	By a supplementary note served by Miss Richards, on behalf of the Secretary of State, just prior to the first day of hearing, the following was stated so far as relevant (there was also reference in it to the Grubin report, about which no issue was raised in argument):
“In response to some of the points raised by the Claimant's skeleton, the SSHD's position is as follows:
1. The SSHD does not, and did not, simply rubber stamp the RMO's recommendation. The SSHD considered whether, in light of the material from the RMO, the criteria in s. 50(1) were fulfilled. In so doing he looked at the material from the RMO along with the other information held by the Home Office in relation to the Claimant. The SSHD concluded that the s. 50(1) criteria were fulfilled and that a warrant should be issued. The SSHD considered that the matter needed to be dealt with urgently in light of the concerns expressed by the RMO.
2. The SSHD was aware of, and had regard to, the decision of the MHRT [the Tribunal]. However, it was apparent to the SSHD that the case had moved on since [the Tribunal] took its decision to the extent that it was now the view of the Claimant's RMO that no effective treatment could be given at Rampton for the Claimant's disorder.
3. The SSHD did not have the report of Dr Brugha which he has seen only subsequently and as part of the judicial review proceedings. The report did not, therefore, form part of the SSHD's decision-making process.” 
39.	Some of the proposed amendments came in response to that note, which was subsequently fortified by a witness statement by Ms Martine Green on the Home Secretary's behalf to the same effect. 
40.	I dealt with the amendments or applications for such amendments in the following way:
	(1) The case against the Home Secretary by reference to the Brugha report:
41.	I gave leave for this amendment, which was not vigorously opposed. Even without the amendment, the issue in relation to this report would arise if the Home Secretary had, as it is alleged he should have done, given the opportunity for representations. It is clear that if such representations had been made on the claimant's behalf they would be bound to have included the Brugha report because of course we know that that is exactly what happened at the 20th March CPA meeting. Thus the report would have been brought to the Home Secretary's attention in those circumstances, in any event, had there been such representations.
42.	The further case added by amendment is that the Brugha report was material, even without such representations. It was unknown to the Home Secretary, who only received or considered information which was on his files, and the Brugha report was not on the files, as it was not, in the event, produced for the Tribunal hearing, in the circumstances to which I have already referred. But, nevertheless, it was submitted by Mr Bowen to be an important and necessary fact, such as to fall within the developing new doctrine of “misunderstanding or ignorance of an established and relevant fact” as discussed most recently in the case of R (on the application of Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 at paragraph 53 per Lord Slynn.
	(2) The case relating to alternative teams or hospitals:
43.	I did not give leave for this amendment for the following reasons. As to alternative hospitals, (a) there was or would have been a need for resolution of disputed evidence as to whether there was any other relevant or available secure hospital appropriate for the claimant's condition, apart from Rampton, which is of course the recognised specialist hospital in this regard. To resolve such dispute, especially at this late stage (and no explanation was given for its lateness) would be almost impossible, but certainly would be prejudicial to the defendants: (b) In any event, it is worth reminding oneself of the terms of section 50(1) of the Mental Health Act. The notification is that:
“...no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may-
(a) by warrant direct that he be remitted to any 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...” 
44.	It seemed to me clear, in those circumstances, that removal to a different hospital does not fall expressly either within the notification, which is limited to whether he can be treated in the particular hospital, or within the direction that the Secretary of State can make, which is limited to removal to a prison or other institution, which appears to me to include any kind of institution similar to prison, but not a hospital. There would of course always be the position that if the patient were removed back to prison there could be a subsequent transfer order to a different hospital, if the conditions of section 47 are satisfied.
45.	I have not had the need to hear full argument on this point, which is only my present view as to the law, but given the lateness of the amendment and the disputed nature of the facts, quite apart from the uncertain area of the law to which I have referred, I was entirely clear that I should not grant an amendment to make an allegation in this regard.
46.	As to the question of an alternative team, there was again no explanation or excuse for the lateness of this proposed amendment. The possibility of leaving the claimant at hospital with a different RMO and/or a different team had been trailed by Mr Bowen at or prior to the permission application, in a skeleton which was not served on the Home Secretary, never found its way into a claim form, and was never notified to the Home Secretary.
47.	There has been now, after the intimation of a proposed amendment, some evidence filed by the Hospital to explore the position, from which it is clear that on the Hospital's evidence there was no feasibility to take that course at Rampton. That issue would have had to have been fully explored. I was quite satisfied that it was not appropriate to give leave to amend in that regard either.
48.	If the issue should arise, as I shall be discussing later in this judgment, of the discretionary nature of the relief, ie if all or some of the complaints made against the Secretary of State are otherwise established, and the issue of “no different result” is considered, then the question may arise in that context; but not as a specific head of complaint of failure to take a matter into account and/or irrationality, because I refused the amendment.
	(3) The Amendments sought against the Hospital in relation to an alleged duty to pass further information to the Home Secretary.
49.	This is derived by Mr Bowen from a passage in Fordham's Judicial Review Handbook (Third Edition) at paragraphs 60.6.7, headed:
“The right to have material fairly/accurately presented.”
50.	The case to which alone I have been referred by Mr Bowen, which appears in that short passage in Mr Fordham's book, is R v South Glamorgan County Council ex parte Harding, an unreported decision of Scott Baker J of 27th November 1997 CO/510/95. It appears to be the case there that the Director of Planning's report to the Planning Committee, in a situation in which the Council was giving itself planning permission, left out an important detrimental matter, thus not giving a fair presentation of the picture. This authority does not of itself appear to me to establish any new proposition of law relevant to the construction of section 50 where an RMO is giving a notification to the Minister of the conclusion of the hospital in relation to availability of effective treatment, but certainly so in the absence of any case that a false picture was given.
51.	However, in any event, the law is only the starting point. I leave aside for a moment the question of the Brugha report and I concentrate on what was referred to as the 'dissension in the ranks' point.
(1) It is quite clear to me that on the evidence before me there is no case to show dissension in the ranks. Mr Bowen sought to persuade me to infer from the evidence before me that Ms Evershed and Mr Jones disagreed with Dr Hayden and the rest of the team on treatability, but I do not do so.
(2) Even if they did, it is clear that the majority opinion was as described by Dr Hayden. He was RMO, and it was his notification that was given, and no case of irrationality is pursued against him or the Hospital. It is plain and obvious that, as indeed he himself has described, any such recommendation would be arrived at after full discussion, in which there might well be differing views expressed; but a consensus was, as he describes, arrived at, on the basis of which he made the recommendation. And I do not conclude that it is material to disclose the methodology by which the consensus is arrived at.
(3) In any event, the proposed amendment is extremely late, and once again no explanation or excuse is given for the lateness. It is plain that, as I indicated earlier, the claimant has believed that Mr Jones was in favour of his remaining in the hospital from an early stage, and if this case by inference was to be made, coupled with the assertion of a relevant failure in that regard by the Hospital, it could and should have been made much earlier, and no delay, alleged by Mr Bowen, in answering questions in correspondence prevented the case being put forward.
52.	Whatever the position, however, in any event, it is plain that if this amendment were allowed there would be the need for considerable further evidence. The claimant seeks no adjournment, and I am entirely satisfied that this is not an issue on which it is either practicable or, in the circumstances, without considerable prejudice, appropriate, to resolve, quite apart from the other difficulties to which I have referred. That is why I refused that proposed amendment.
53.	As for the similar claim about a duty on the Hospital to refer specifically to the Brugha report, that seemed to me, and still seems, to have, considerable difficulties in its path. The statute requires the giving of a notification, and it is plain that the Secretary of State would have knowledge derived from the Tribunal and from the annual report, but what is suggested is that one particular piece of additional information ought to have been provided. 
54.	I adjourned my decision on that at that stage of the hearing, as it seemed likely to be associated with the other questions relating to the Brugha report which formed part of the unamended case and/or the case for which I have permitted an amendment as against the Secretary of State, to which I shall come in due course.
	Legitimate Expectation.
55.	I did not call on the defendants on this issue and I shall deal with it very shortly.
(1) The claimant's case is set out in summary in paragraph 30 of Mr Bowen's skeleton:
“The Claimant did not embark on the SOTP until September 2001, so on that timetable the current treatment programme would not be finished until July 2003. By starting the Claimant on that programme he was given an unambiguous and unqualified representation that he would be entitled to finish the programme in the absence of some compelling reason. The reasons given by Dr Hayden for discontinuing the programme are insufficient.” 
56.	In my judgment that submission is unsupportable. Without repeating all the relevant evidence in this judgment it is quite clear to me that there was no assurance given, nor is there indeed any identification of any such, even when he was moved to Rampton, that he would be entitled to take part in the SOTP. He did not start it until a considerable time after he had been at Rampton, and even then only after an assessment which he might not have survived, and no representation, in my judgment, was even implied that he would be entitled to finish it, irrespective of medical, and here concededly non-irrational medical, opinion to the contrary.
(2) If legitimate expectation there was, it would be that the defendant would act lawfully; to that end it adds nothing to the rest of the case.
57.	The claim against both defendants failed on this head.
	The Question of Remedy.
58.	Before I deal with the claims by reference to the claimant's complaints of irrationality or unlawfulness, I must deal with the issue of remedy. It is common ground that the relief granted by the Administrative Court is discretionary. There was some discussion between the parties about the approach of this court, which is often described as being the concept of 'no difference', ie where it is found that there was a failure by the decision maker, but that, nevertheless, the court is satisfied that the result would, in any event, have been the same.
59.	The position seems to me, on the authorities, to be as follows:
(1) Where the complaint which is established is that the decision by the decision maker was ultra vires, then it is exceptional for the court not to exercise its discretion to quash a decision (see Berkeley v Secretary of State for the Environment [2000] 1 AC 603).
(2) Where what is alleged is that the decision was Wednesbury unreasonable because of a failure to take into account a material consideration then the court must:
“...be persuaded that there is a real possibility that the consideration of the omitted matter would have made any difference to the decision.” 
60.	Per Schiemann J in R v Thurrock Borough Council and Others ex parte Tesco Stores Limited and Others 27th October 1993 CO 1737/93.
(3) Where there is a complaint established of breach of natural justice or a breach of procedure, including a failure to consult or a failure to give reasons, the court may still refuse any relief if satisfied by the decision maker that the decision was in any event justified, though this may be the more exceptional where the failure was a failure to give reasons where the duty to do so was a statutory obligation on the part of the decision maker (see Boddington v British Transport Police [1999] 2 AC 143 at 174 B-D per Lord Stein and R v Northamptonshire County Council ex parte W per Laws J 28th July 1997 CO/1340/97 explaining R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302).
	The Surviving Case Against the Hospital:
61.	Apart from the adjourned proposed amendment in respect of the Brugha report, the only case which the hospital had to meet was the claimant's allegation of failure to give the opportunity for consultation. Mr Bowen, as against both defendants, bottomed his case for consultation, and in the case of the Home Secretary also for reasons, by reference to propositions and authorities informing and underlining the need for transparency or for natural justice, and for what he submitted to be the protection of his client's Article 8 rights.
62.	Although the claimant did not stand to be discharged or released and thus regain his liberty as a result of the decisions, because he was being ordered to prison (no liberty) as opposed to being retained in a secure hospital under a restricted order (no liberty), nevertheless Mr Bowen submitted (1) that this was a less satisfactory arrangement for the claimant in terms of the loss of opportunity to gain treatment and (2) that that very loss of opportunity was very likely to affect his prospect of release in the long term.
63.	The points which he formulated and highlighted, by reference in particular to the case of R v Ministry of Defence ex parte Murray, Divisional Court, 15th December 1997 CO/2319/1997 emphasised the following: (1) the trend towards greater openness or transparency (see R v Secretary of State for the Home Secretary ex parte Doody [1994] 1 AC 531 and R v Home Secretary ex parte Duggan [1994] 3 All ER 277) which would (2) also apply, he submitted, even in a case of clinical opinion (see, for example, R (Wooder) v Dr Feggetter [2002] EWCA Civ 554) and (3) particularly so where no appeal was available (see Lloyds v McMahon [1987] AC 625 and R v Civil Service Appeal Board ex parte Cunningham [1991] 4 All ER 310) or (4) where in the case of availability of judicial review it would be necessary to give any such proceedings a chance of success for any error of law to be identified by the giving of reasons.
64.	It is against that background therefore that he asserts that the decision here of the Hospital by its RMO was a case which, because of its consequences to the claimant, required the opportunity for consultation. He asserts that the claimant was not a high risk patient and that any documents showing so postdated the decision, and there was thus no call for a failure to consult.
	The Hospital's Case:
(1) What is fair depends upon the circumstances (see Re D [1996] AC 593 at 609 B per Lord Mustill). This is a recommendation by an RMO with full knowledge of the circumstances, on the basis of a clinical conclusion by him and his multi-disciplinary team.
(2) Such clinical judgment would not have been affected by representations by the patient or those acting on his behalf. It was a question for the treating hospital and also a matter, in their clinical judgment, of urgency. This was not a question of addressing a high security risk classification in relation to the claimant, although that was in fact their judgment at the time even though the documents only were completed later, but a decision in which all the circumstances fully described by Dr Hayden in his witness statement required an urgent decision in the interests of the Hospital, and its other patients.
(3) In any event, there was nothing materially additional to say which would have made any difference. (a) They knew of the Tribunal decision. That decision was based upon the recommendation which the RMO and his team were then making. There had since then been what Mr Clayton QC called a sea change. (b) The reports of Professor Brugha and Professor Grudin, however eminent those two professors were, were reports by outsiders, were based upon assessments the previous September and, in any event, were taken into account. Professor Brugha in particular was cautious and sceptical as Dr Hayden had been at that stage. (c) Up-to-date reports now provided by both of those two doctors did not cause any change of view by Dr Hayden or his team. (d) Factual responses now given by the claimant as to his version of events at best amount to a joinder of issue, and are not, and would not have been, persuasive.
(4) The decision of Dr Hayden is not now said to have been irrational or to have been disproportionate in interference with the defendant's Article 8 rights.
65.	In my judgment it is plainly the case that section 50 entitles the treating hospital to notify the Secretary of State that “no effective treatment for the claimant's disorder can be given in the hospital”. This plainly requires careful consideration by the hospital and of course issues of duty of care by reference to section 139 of the MHA might arise, but it does not require prior consultation with the patient.
66.	In any event, I am satisfied on the facts of this case that there was nothing in the reports or the existence of the Tribunal decision which, if it had been raised with Dr Hayden at the time, would have caused any change of view, and that if there had been exploration with the claimant in relation to the catalogue of incidents since the Tribunal hearing upon which Dr Hayden and his team relied, any different result would have occurred. The position would still have been the view taken in those circumstances, on the basis of unresolved disputed issues.
67.	Mr Bowen has pointed out that the letter to the Secretary of State referred to incidents which had occurred since the change of ward in August 2001, and was not limited to events since the Tribunal decision. That does not seem to me in any way to undermine the case for the hospital. It is plain that already by the time of the Tribunal Dr Hayden was concerned about what had occurred, but was nevertheless prepared to see the matter through. What continued thereafter, and the deterioration which was evidenced by what occurred, led him to make the recommendation he did, which I emphasise has not been suggested to be irrational.
68.	In those circumstances I am satisfied that even were I wrong in my conclusion that the making of a recommendation by an RMO in charge of a patient based on his conclusion that no effective treatment for the disorder could be given in the hospital does not require prior consultation with that patient, this is a case in which I am satisfied by the hospital that no different result would have occurred even had there been such consultation, and in any event that the Hospital was entitled, rationally, to reach its rational decision as a matter of urgency and without such consultation.
	The case against the Secretary of State.
(1) Failure to consult and failure to give reasons.
69.	The claimant puts the case on the same basis against this defendant as he did against the Hospital, and of course it was the decision of this claimant which actually led him to be transferred back to prison.
	The Secretary of State's case:
(1) There is a section 50 notification by the RMO at a hospital that no effective treatment for the claimant's disorder can be given. In those circumstances, although he is required to give the matter consideration and to look at the files, there is no call for the onset of any kind of process analogous to a Tribunal consideration. The Secretary of State must simply satisfy himself that there is no reason to doubt the view of the hospital, not to enter into a dispute between competing expert witnesses and clinical views.
(2) The urgency did not call for entry into a protracted exercise on the facts of this case.
(3) While there is in fact no call for reasons, the reasons are plain, namely that the Hospital could not continue to treat the claimant.
70.	Before dealing with this case I shall turn to deal first with the irrationality challenge. This, as described above, is put on the basis that there was a failure to take into account material considerations, and Mr Bowen referred in particular to R v Somerset County Council ex parte Fewings and Others [1995] 1 WLR at 1037 and to R (on the application of Jones) V North Warwickshire Borough Council an unreported decision of the Court of Appeal of 1st March 2001.
71.	The material considerations which, it is submitted, were not taken into account by the Secretary of State or the ignoring of which amounted to an irrationality are: (1) the Tribunal decision and (2) the Brugha report.
	The Tribunal Decision.
72.	The claimant submits that the Secretary of State was bound by the decision of the Tribunal. Although it was not a decision given on the express issue of a contested discharge or application to transfer, as neither the claimant nor the Hospital were then seeking a transfer, nevertheless the decision was that the claimant should continue to be treated at the Hospital and that decision was only three months before. I have read the reasons which the Tribunal gave. They are plainly uncertain as to the future, but their recommendation as to the present was clear.
73.	Mr Bowen referred me to R (Von Brandenburg) v East London and City Mental Health NHS Trust [2002] QB 235 and the earlier decisions of R v Pathfinder NHS Trust ex parte Wey [2000] 3 CCLR 2001 and R v Secretary of State Home Department ex parte Harry [1998] 1 WLR 1737. He submits that by reference to section 50 it is plain that what he calls its 'hierarchy' indicates that a tribunal's view is to be taken into account more than that of an RMO. He submits that the Secretary of State consequently was bound by the Tribunal decision at least unless there was a change of circumstance by which the Secretary of State was entitled to be satisfied, and he submits that there was none, and points out, as I have already stated, that the letter of 8th March referred to events commencing before the Tribunal hearing.
74.	The Secretary of State denies that he is bound by the decision. He accepts, as indeed is clear from the supplementary note to which I have referred, and the subsequent evidence of Miss Green, that he was obliged to take it into account, and that he did so. In any event, he relies on the sea-change of the circumstances evidenced by Dr Hayden and relied upon by the Hospital.
75.	I am satisfied:
(1) that the Secretary of State was not bound by the Tribunal decision, though obliged to take it into account. The hierarchy to which Mr Bowen referred, and which counsel for the Secretary of State referred to in the passage in which I have referred in Hickey, indicates that there would be a distinction in relation to the Secretary of State's response to a recommendation for return to prison by a tribunal as compared with one by the RMO, but that did not arise in this case.
76.	What is in my judgment crucial is that the Secretary of State was faced with a notification by the RMO as of 8th March 2002. Of course, in those circumstances he was required to look at the previous history but this was not a case such as, for example, was suggested in Von Brandenburg of an RMO who had always disagreed with the Tribunal's decision, and who might be said to be taking an early opportunity to reassert a view which he had always held, in conflict with what could otherwise be said to be a binding view of the Tribunal. Dr Hayden had been equivocal at the time of the Tribunal, and had been convinced of the appropriateness of the return to prison, and of the inability of the Hospital to treat the claimant, by March. Even if, as I have early indicated, the events had begun before December which had led to his scepticism, by March he is now making a recommendation.
(2) There was plainly a change of circumstance; not simply the category of incidents put in evidence by Dr Hayden, but the very change of clinical judgment by Dr Hayden and his team.
77.	In those circumstances, I am entirely satisfied that the Secretary of State did not act irrationally or fail to take into account a consideration that he should have done nor fail to be bound, as he should have been, by the Tribunal decision.
	The Brugha Report.
78.	I have already indicated a number of reactions to the Brugha report which Dr Hayden had, and in my judgment was entitled to have. In particular: (i) it related to an assessment the previous September and did not take into account the matters thereafter; (ii) it was not by a treating doctor; and (iii) it was not on the Secretary of State's files, where the most important documents would be, namely reports which had been prepared for the purposes of a tribunal, and the annual reports by the RMO. I am satisfied that it was not necessary for the Secretary of State to take such a report into account, and in those circumstances the absence of the report, unknown to the Secretary of State, was not such a material factor as would fall within, even assuming it exists, the wider doctrine adumbrated by Lord Slynn in Alconbury. 
79.	But I must consider the two alternative ways in which the report is said to be relevant. (i) If the Secretary of State had given the opportunity for consultation by the claimant and his advisers, then they would have brought it to his attention. (ii) If the amendment were permitted as against the hospital, then they could be said to have been under a duty to put it before the Secretary of State, in which case he would then have seen it. I am satisfied that for all the reasons to which I have already referred the report, had it been brought to the attention of the Secretary of State in either of those two ways, it would not have caused him to change his mind. That is not simply an issue of discretionary relief in which I am not satisfied that the claimant has proved that there has been prejudice. I am also satisfied that the report is not a report which would amount to a material consideration.
80.	In those circumstances I turn to consider the question of consultation. I do not conclude that there was an obligation on the Secretary of State to consult, in the absence of any matter which would cause him doubt as to the conclusions reached by the RMO. There was urgency on the facts of this case, and on the facts of this case there was a statement by the RMO of the hospital that the hospital could not provide effective treatment for the claimant's disorder. I do not conclude that there was an obligation in those circumstances for the Secretary of State to give an opportunity for consultation to the patient. If there was, I am satisfied that any consultation would not have made any difference. For the same reasons, I do not conclude that it is appropriate to grant leave to amend, as against the Hospital, to allege that they were under some duty to bring the report before the Secretary of State. Quite apart from the questionable nature of the duty in question, arising as it does out of a case which does not seem to me to bear any close analogy with the facts of this case, I am satisfied that the absence of the report does not in any way render the picture which the RMO put before the Secretary of State either false or other than full, and in my judgment he was not obliged to have brought forward anything other than the notification which is required under section 50. It is not appropriate, therefore, in my judgment, for the amendment which would in any event have involved, as I have earlier indicated, some additional evidence to be considered to be allowed because it was delayed, prejudicial and bound to fail in any event.
81.	In those circumstances, I do not conclude that the Secretary of State's judgment was irrational, in accepting the view of the Hospital, as notified to him, that there was no effective treatment that the hospital could give for this claimant. I am satisfied that he did not fail to take any matters into consideration that he ought to have taken into consideration. In any event no further consideration, including consideration of the Brugha report, or indeed the further Brugha or Grubin reports, had they been before him, would have made any difference.
82.	I have already concluded that there was no duty to consult, but if there had been a duty to consult I am satisfied that it would have made, on the facts of this case, no difference. Insofar as there had been consideration of, or suggestions raised about, an alternative RMO or medical team, such (disputed) issue would too have made no difference to the Secretary of State's acceptance of the notification, which is conceded not to have been irrational, that the Hospital could not give the claimant effective treatment for his disorder.
83.	So far as the giving of reasons is concerned, I am satisfied that the reason he gave, namely that he was satisfied by the Hospital that no effective treatment for the disorder could be given in the hospital to which he had been removed, was sufficient, and that no further reasons were required, and in any event that that reason did not need to be spelt out, because it was implicit in the acceptance of the recommendation.
84.	In those circumstances, I dismiss this application.
MR BOWEN: My Lord, thank you for the effort you plainly put into that decision. But may I apply for permission to appeal?
MR JUSTICE BURTON: What is the basis of it?
MR BOWEN: My Lord, the grounds that were assessed by you, or rather that you considered, that the appeal has a real prospect of success. 
MR JUSTICE BURTON: Yes, well tell me what the basis of the appeal are.
MR BOWEN: Or alternatively that there is some other compelling reason why the appeal should be heard.
MR JUSTICE BURTON: Yes.
MR BOWEN: My Lord, this is the first case of this kind involving the interpretation of section 50, although we had Hickey back in 1995, it did not touch upon this specific issue as to the process that the Secretary of State should adopt when considering whether to exceed to the recommendation of the RMO. It does engage significant potential, I am hesitating to say interferences, with the rights of the patient because that is, in some sense, for consideration, but your Lordship did not dispute that anyone said of that, the claimant's case, that this is a decision which is going to have long-term significance for his prospects of future release. So it is of great importance to him and even though it is going to be possibly weeks or months before the case can come before the Court of Appeal, nevertheless a positive resolution of this case will be of great benefit to him, even if he is not immediately transferred back to hospital, it will increase his prospects of being transferred back to another hospital. So my first submission is that there is a compelling reason. This is an issue of great importance for the individual. It is of wider importance to this group of individuals, in any event, and it is a matter upon which, in my respectful submission, the guidance of the Court of Appeal would be of great assistance.
My Lord, I am not going to seek to try and persuade you that the appeal has any great prospects of success, bearing in mind the views to which your Lordship has come.
MR JUSTICE BURTON: No, I think you must try your luck with the Court of Appeal, Mr Bowen. Thank you very much indeed. But thank you all very much indeed for your very thorough preparation and argument. Yes?
MR CLAYTON: The claimant is publicly funded and I would ask for the usual order pursuant to the football pools.
MR JUSTICE BURTON: Yes.
MISS RICHARDS: My Lord, I make the same application.
MR JUSTICE BURTON: Mr Bowen?
MR BOWEN: My Lord, I am in some difficulty because I am under the impression that in fact in the light of Gunn the court does not have any discretion to make that kind of order. It would simply be a question of making an order for costs in favour of----
MR JUSTICE BURTON: What, you do not think football pools orders exist any more in the light of our disastrous performance in the World Cup? I did not know that it did not exist or they did not exist and it comes as news to me; I have been making them. What case do you say refers to it?
MR BOWEN: It is the case R v Home Secretary ex parte Gunn and the Court of Appeal gave some guidance upon it for the approach to be taken in terms. 
MR JUSTICE BURTON: Do you have it with you?
MR BOWEN: My Lord, I do not, I am sorry.
MISS RICHARDS: My Lord, if it assists I strongly suspect that my learned friend is entirely right. The order that the Court of Appeal now makes when there is an unsuccessful appeal by a publicly-funded individual is what is termed a section 11 order and that is reference to section 11 of the Administration of Justice Act which replaced the old Legal Aid Act, amongst others, and although there used to be a difference of approach between the orders that the court of first instance could make and the order of the Court of Appeal, post the change in the legislation, post Gunn, it seems to me that that is not a distinction which arises any more. The order that is made therefore is an order that the claimant pay the defendant's costs simpliciter. There is then a mechanism whereby if the defendant wants to do anything about that they make an application to the costs judge for the costs to be paid by the Legal Services Commission and the responsible principle to apply. I have no objection to that being the order made.
MR JUSTICE BURTON: So you are saying it would be simply the claimant to pay the defendant's costs but with liberty to apply to enforce, is that it?
MISS RICHARDS: If the Associate wants to identify the precise wording the Court of Appeal associates have a form of wording on a piece of paper which they call a section 11 order and that is the one which I would strongly suspect would be the one.
MR JUSTICE BURTON: I am not sure because Mr Bowen was rather keen to have no order at all, I suspect.
(The Judge and the Court Associate were in discussion)
MR JUSTICE BURTON: The Associate is indicating to me that a section 11 order would be appropriate. He can get the wording and if I make a section 11 order everyone is going to know what it is. But the effect of it, Miss Richards, as I understand it, is much the same as the football pools order.
MISS RICHARDS: It is indeed. In terms of any question of enforcement against the claimant himself, that is something that would only arise if the costs judge determined that the claimant had the means and abilities to pay.
MR JUSTICE BURTON: I shall simply stop using the words “football pools” and use the words “section 11”. Will that satisfy you, Mr Bowen?
MR BOWEN: My Lord, either way, I say, I would not be bothered, I am just trying to help, what I understand the position to be.
MR JUSTICE BURTON: Very good. Yes, and you want legal aid taxation yourself I assume. Do we have a certificate on the file?
THE COURT ASSOCIATE: No, my Lord.
MR BOWEN: I will arrange for that to be put on the file within seven days. I know the wording is different, but the substance of what I want is detailed assessment. 
MR JUSTICE BURTON: Thank you very much indeed. I will hand back your book.
MR BOWEN: Thank you, my Lord. There is one other matter, your Lordship does have the power to order the expedition of a transcript.
MR JUSTICE BURTON: Yes.
MR BOWEN: And I would ask that it be expedited in those circumstances.
MR JUSTICE BURTON: Yes.
MR BOWEN: I have to lodge a notice of appeal within 14 days.
MR JUSTICE BURTON: I think you want to make your application to the transcript writer rather than me. Yes, I shall make the order for an expedited transcript. Thank you very much.