The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the restriction on compensation under the 1983 Act contravened the ECHR.
Held: The detention was otherwise than provided for and was unlawful. Later acts by the Authority could not cure that unlawfulness. Section 139 provided that the Authority should be free of having to pay compensation. This was in contrast to the claimant’s Human Rights and the section must be read down accordingly. In order to be Convention-compliant section 139 is to be read as though it had added at the end the words ‘or is otherwise unlawful, for example because of a contravention of s 11(4).
There had been a change in the way public law approached the consequences of non-compliance with a procedural requirement in the exercise of a statutory power, and the approach now is more flexible.
Toulson LJ said ‘Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant’s loss of liberty . . There may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification.’
Sir Kenneth May P, Toulson, Jackson LJJ
[2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873
Bailii
Mental Health Act 1983 3 6(3) 12(2) 139, European Convention on Human Rights 5, Magna Carta 1297 29
England and Wales
Citing:
Cited – Regina v Managers of South Western Hospital and Another, Ex Parte M QBD 24-Mar-1993
The patient was detained on the application of an AMHP. In purported pursuance of section 11(4) the AMHP had consulted the patient’s mother as her nearest relative. However, the patient’s mother was not ordinarily resident in the UK, and, according . .
Cited – Davidson v Chief Constable of North Wales Police and Another CA 31-May-1993
A store detective said the plaintiffs had stolen from the store. He was wrong. The plaintiffs sought damages from the defendant for false imprisonment.
Held: If the police use their own discretion to arrest a suspect, an informer is not liable . .
Appeal from – TTM v London Borough of Hackney and Others Admn 11-Jun-2010
The claimant had said that his detention under the 1983 Act was unlawful, and that the court should issue a writ of habeas corpus for his release. Having been released he sought damages on the basis that his human rights had been infringed. The . .
Cited – In re S-C (Mental Patient: Habeas Corpus) CA 22-Nov-1995
The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. . .
Cited – Regina v Central London County Court and Managers of Gordon Hospital ex parte AX London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
Cited – E, Regina (on the Application of) v Bristol City Council Admn 13-Jan-2005
The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – New Zealand Institute of Agriculture Science Inc v Ellesmere County 1976
(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and . .
Cited – Project Blue Sky Inc v Australian Broadcasting Authority 28-Apr-1998
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of . .
Cited – Society Promoting Environmental Conservation v Canada (Attorney-General) 2003
(Canada – Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: ‘the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Director of Public Prosecutions of the Virgin Islands v Penn PC 8-May-2008
(British Virgin Islands) The Board considered a case about a failure to comply with the statutory provisions for the empanelling of jurors to try a criminal case. Lord Mance said: ‘The modern tendency is no longer to seek to identify or distinguish . .
Cited – The Montreal Street Railway Company and Another v Roch Normandin PC 23-Jan-1917
(Quebec) . .
Cited – Director of Public Prosecutions of the Virgin Islands v Penn PC 8-May-2008
(British Virgin Islands) The Board considered a case about a failure to comply with the statutory provisions for the empanelling of jurors to try a criminal case. Lord Mance said: ‘The modern tendency is no longer to seek to identify or distinguish . .
Cited by:
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Cited – Commissioner of Police of The Metropolis v Copeland CA 22-Jul-2014
The defendant appealed against the award of damages for assault, false imprisonment and malicious prosection, saying that the question posed for the jury were misdirections, and that the jury’s decision was perverse. The claimant was attending the . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights, Damages, Torts – Other
Updated: 01 November 2021; Ref: scu.428028
