M, R (on the application of) v Mental Health Review Team, Court of Appeal - Administrative Court, December 07, 2005, [2005] EWHC 2791 (Admin)

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M, R (on the application of) v Mental Health Review Team, Court of Appeal - Administrative Court, December 07, 2005, [2005] EWHC 2791 (Admin)

Case No: CO/1174/2005

Neutral Citation Number: [2005] EWHC 2791 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 07/12/2005

Before :

MR JUSTICE BENNETT

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Between :

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(Transcript of the Handed Down Judgment of

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Miss Fenella Morris appeared on behalf of the Claimant

Mr Martin Chamberlain appeared on behalf of the Defendant

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Judgment

The Honourable Mr Justice Bennett:

1. By judicial review proceedings begun on 24 February 2005, for which permission was given by Munby J. on 29 April, the Claimant seeks an order that the decision of the Defendant of 25 November 2004 be quashed.

2. The grounds for the application are these. The Claimant was charged with assaulting a police officer. His case came before HHJ Walker, a Circuit Judge, (``the judge'') sitting at Blackfriars Crown Court on 7 July 2003. The Claimant pleaded guilty and the case was adjourned for medical reports. On 16 September 2003 the Claimant appeared in front of the judge who imposed a hospital order and a restriction order pursuant to ss. 37 and 41 (respectively) of the Mental Health Act 1983.

3. The Claimant applied for a review of the detention by the Mental Health Review Tribunal (``the Tribunal'') and it was to be heard on 25 November 2004. The panel included the judge as the legal member. The Claimant recognised correctly, as it turned out, the judge as the judge who had sentenced him. I shall return in due course to what then happened as it is relevant to the issue of waiver.

4. The judge continued to sit as the legal member. The written and oral medical evidence was considered by the Tribunal and other witnesses. It considered the matter and refused to discharge the Claimant.

5. Miss Morris, for the Claimant, submitted that it is not lawful for a judge who has imposed an order for a patient's detention in hospital under MHA 1983 to determine a subsequent application by the same patient for discharge from detention because there is an appearance to a fair minded and informed observer of bias, whether looked at in accordance with Articles 5 (4) and 6 of the European Convention on Human Rights, or under domestic law.

6. Mr Chamberlain, for the Defendant, submitted that, on the facts of the instant case, a fair minded and informed observer would not conclude that there was a real possibility that the judge was biased. He further submitted that at the hearing in front of the Tribunal the Claimant, having received legal advice from his solicitor advocate, decided not to object to the judge continuing to sit on this case and that such decision should be regarded as informed and unequivocal and thus the Claimant waived any objection.

7. I have read statements of Yolanda Taw, the Claimant's solicitor of 24 February 2005 and 14 September 2005, the Claimant of 26 May 2005, his sister, Lorraine Mckoy, of 2 June 2005, Debroah Postgate, the Claimant's solicitor advocate, of [note to counsel - please...

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