Blog post by Tim Baldwin and Alex Schymyck of the Garden Court Chambers Public Law and Mental Health Law Teams.
This article takes a deep dive into the judgment in R (Maher) v First Tier Tribunal (Mental Health)  EWHC 34 (Admin). There is already a short blog describing the background to the case and outcome available here, and further commentary published in the Guardian [ii], Mental Health Law Online [ii] and a press release [iii]. This article will discuss 1) the Practice Direction promised by the Tribunal, 2) the Victims Bill currently progressing through Parliament, and 3) the Court’s approach to discrimination.
In summary, the Claimant brought a successful challenge to the First Tier Tribunal (Mental Health)’s refusal to provide reasons for its decision to release the man who had killed her son. The killer had been convicted of manslaughter with diminished responsibility and the Tribunal directed his release just four years after the offence took place. Understandably, the victim’s mother was concerned about how the Tribunal reached that decision. The High Court found that the Tribunal’s blanket policy of refusing to provide a copy of its reasons to victims or their relatives was unlawful and quashed a later decision reached in this case.
Missing Practice Direction
In the judgment, Mrs Justice Stacey observed that there were no rules or provisions governing the publication of reasons by the Tribunal:
“The FTT does not have any formal document setting out its approach concerning the provision of reasons to victims or the families of deceased victims: the rules are silent and victims are not party to the FTT proceedings. There is no specific process or form by which a victim can apply to the FTT for reasons. The process for applying, in this case, was that the FTT received a pre-action letter of claim from the Claimant's legal representatives. It would appear that no records are kept by the FTT of whether any other families of victims or indeed victims themselves, have requested reasons for FTT discharge decisions. Mr Dowse is only aware of three cases in the FTT where reasons have been made public: Ian Stuart Brady, Jared Britton and Albert Haines. In each of their cases, the patient's request that the FTT hearings be held in public was granted. The FTT published the reasons for its decision to allow the hearing to be conducted in public in each of their cases but only in the case of Mr Brady and Mr Haines did the FTT also publish the reasons for its discharge decision either at the request of or with the approval of the mental health patient concerned.”
Nonetheless, it was accepted on behalf of the Tribunal and Secretary of State for Justice that the Tribunal does have a discretionary power to provide its reasons to individuals who are not parties to proceedings before it. However, when the claimant applied for reasons from the Tribunal, she was rebuffed and told that it was not possible for the victim of an offence to ask for reasons from the Tribunal directly.
Mrs Justice Stacey concluded that the response from the Tribunal indicated that it had applied a blanket policy of refusing to provide reasons in all cases:
“It is clear from the wording of the First Decision that the FTT had not considered the specifics of Ms Maher's request and took the view that victims were not entitled to reasons for its decisions. It applied a blanket policy or practice at that point of not providing reasons or the gist of reasons at the request of a victim. If there was any lingering doubt on the matter from the contents of the letter itself and reference in the letter from the SSJ that "victims are not currently entitled to this information", the fact that the FTT volunteered to look at the matter "afresh" and produce its Further Decision on 1 February 2022 suggests that they have failed to have done so previously.”
During proceedings, the Tribunal Procedure Rules Committee indicated that they would prepare a practice direction to address this issue, and provide guidance regarding the circumstances in which the Tribunal will disclose reasons to victims and their relatives. It has now been almost five months since the judgment was handed down, and, to date, there is no indication regarding when the new practice direction will be published or whether there will be any consultation on its content.
One of the issues raised by this case is how poor the support available for victims of crime and the relatives of the victim of crime. There were several failures by agencies involved in the criminal justice process in their interactions with the claimant. For example, after the criminal sentencing exercise had been completed, the claimant should have been assigned a Victim Liaison Officer immediately. In reality, it took over a year for a Victim Liaison Officer to be assigned, during which time the claimant was not provided with prompt or clear information about what was happening.
Perhaps of greatest concern is that the patient was initially detained in pursuance to the hospital order made by the Crown Court at a hospital which was on the same street that the Claimant had lived on for 25 years. The claimant and her family encountered the patient’s family members when they came to visit him.
The new Victims Bill introduces new duties for agencies to collaborate and for relevant authorities to draw up joint strategies regarding how they will combine to exercise their victim support functions. However, it does not address any issues connected with the First Tier Tribunal (Mental Health) and the provision of information to victims.
The Ministry of Justice has launched a separate consultation on transparency in the legal system entitled “Open Justice: the way forward”. While it does not specifically address any particular court or tribunal, Questions 27-32 seek responses on issues connected to the publication and provision of judgments and written reasons. Hopefully, some consideration will be given to developing policy regarding reasons in Mental Health Tribunals. Nevertheless, in R (C) v Secretary of State for Justice (Respondent)  UKSC 2 the Supreme Court considered whether to grant anonymity to a mentally ill man, known as ‘C’. This judgment has wider significance as it sets out the relevant considerations for courts when deciding whether to grant anonymity balancing the open justice principle (Article 10 ECHR) and the interests of the individual (Article 8 ECHR).
Mrs Justice Stacy in Maher acknowledged the different functions of the Parole Board and the First Tier Tribunal, that the First Tier Tribunal was concerned with the treatment of mental health patients, their clinical progress and assessment of risk, and that the Lord Chancellor and Secretary of State for Justice have demonstrated a legitimate aim in protecting the mental health patients. Thus, if there is to be legislation change, it is for Parliament to consider with the benefits of the Victims Commissioner report, and what legislative changes in the Victim’s Bill may be required to balance the competing interests of privacy rights and the open justice principle, including the Tribunal Procedure Rules Committee. In this context, Mrs Justice Stacey noted that:
"The direction of travel in the last 30 years or so has been towards openness and a more rigorous scrutiny of exceptions to the open justice principle and creative thinking about how conflicting rights can be reconciled."
Breach of Article 14 ECHR
One of the grounds relied upon by the claimant was a breach of Article 14 ECHR; the claimant argued that she had been discriminated against compared to situations where the person who has committed an offence is subject to release on licence by the Parole Board. Following R(DSD) v Parole Board  EWHC 694 (Admin) (the “John Worboys” case”), victims have had the right to obtain reasons for Parole Board decisions and to challenge them. The position of victims in relation to Mental Health Tribunals is much weaker.
Mrs Justice Stacey determined that the claimant had established that her case fell within the ambit of Article 8 ECHR, that there was differential treatment between two groups and the differential treatment was based on the claimant’s ‘other status’, namely; being the mother of a son whose killer was given a hospital order and a restriction order, rather than a life sentence for murder.
The main issue concerned whether the defendants had established an objective justification for the difference in treatment. The judge observed that public authorities in this context were entitled to a wide margin of appreciation, where the claimant was relying on a non-suspect ‘other status’ basis of discrimination, and the issues concerned competing ECHR rights.
The judge reached a different view on different aspects of the discrimination alleged by the claimant and analysis of her findings will be important for informing future policy development. On the lack of reasons provided, Mrs Justice Stacey found that the defendants had not established that less intrusive measures were not available, particularly given that a gist or summary of the reasons could be provided. The judge was more sceptical about the lack of opportunity to provide a victim impact statement, ruling that such statements would have little relevance to Tribunal decision-making and therefore the refusal to accept them was justified.
Finally, the judge concluded that the absence of any process for obtaining reconsideration of a Tribunal decision was justified, again citing the differences between the Parole Board and Tribunal regarding the context in which they make their decisions. The judge’s reasoning displays a focus on helping victims to understand the Tribunal process, but little interest in enabling victims to potentially challenge the decisions of the Tribunal. The judge simply noted that judicial review is potentially available, without considering the practical difficulties in launching a judicial review application on the basis of a mere gist or summary of the reasons for the decision.
In conclusion, the judge held the refusal to provide the gist of the reasons for the conditional discharge decision to Mrs Maher, when the Parole Board would have provided a gist of its reasons in similar circumstances, was unlawful discrimination under Article 14 ECHR in relation to her Article 8 ECHR rights.