ASK v Secretary of State for the Home Department

LORD JUSTICE UNDERHILL:

1. As we have already indicated to counsel, we have reached the conclusion, on our reading of the papers and the parties' skeletons and representations, that permission to appeal should be given in both these appeals and on all grounds. At least some of the grounds in both appeals have a realistic prospect of success and/or give rise to a serious reason why the appeal should be heard because of the points of principle that they raise.

2. It is not a useful exercise to go through the various grounds. The underlying broad point of concern in both cases is that a person in detention who has been diagnosed as needing to be transferred to hospital because of a serious mental health condition should nevertheless have remained in detention for very substantial periods because of the delays in effecting that transfer. (I use the word "delay" factually not pejoratively.) The court will need to understand why this happened, both on the facts of these particular cases but also in terms of the system of responsibilities as between the Home Office on the one hand and the responsible organs within the Health Service on the other, with the further complicating factor that there is also a role for the Secretary of State for Justice in effecting such transfers. That means that, although this is not in the true sense an appeal on facts, the court will need to have a very good understanding of precisely what happened.

3. Our view that at least some of the grounds of appeal satisfy the criteria for permission does not mean that that is necessarily the case as regards all, but this is not the kind of case where there is anything to be gained by trying to excise this or that ground at this stage. I do not believe that dealing with such grounds as may not in the end be seriously arguable will appreciably add to the length of the hearing.

4. Turning to the length of the hearing, we think the two appeals should be listed for hearing together over three days. Both appeals should be listed together. As we understand it, NHS England and the Secretary of State for Justice were formally interested parties below. They should both be served with notice of this appeal and thereby become interested parties. It has become clear from discussion with counsel that there may be some uncertainty as to whether NHS England is the correct Health Service body and, as a matter of prudence, Ms Harrison has proposed that she will serve also the Secretary of State for Health, who will therefore also be an interested party, and no doubt he and NHS England can consider their respective responsibilities and roles.

5. I would like to make it clear that the involvement of these interested parties is more than purely for form’s sake. The respective responsibilities are not straightforward: there is a difference between the primary parties as to what they are and the court is likely to be assisted by at least one - if I put it crudely - Health Service party and the Secretary of State for Justice being represented at the hearing, to give it such assistance as it may require in giving any guidance, if this is what is eventually necessary, as to the allocation of responsibilities in situations of the kind with which the appeals are concerned.

6. I should record that Ms Anderson, for the Secretary of State, did not oppose the amendment of the grounds of appeal in ASK .

7. Because of the need to have the full documentation available to the court, the usual bundles limits are disapplied, and I would have thought too that there may well have to be more than the specified maximum number of authorities.

8. Unless I have overlooked any of the other matters that we were asked to cover by directions I think that is all that need appear. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.