Upper Tribunal Allows Appeal on Mental Health Review Jurisdiction

S v [NAME] & Secretary of State for Justice [2021] UKUT 186 (AAC)

[NAME]/916/2020 1

IN THE UPPER TRIBUNAL Upper Tribunal case No. [NAME]/916/2020 ADMINISTRATIVE APPEALS CHAMBER On appeal from the Mental Health Review Tribunal for Wales Rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that the names of any persons concerned in this case must not be made public, unless the Upper Tribunal directs otherwise. THE UPPER TRIBUNAL DIRECTS that: (a) the cover sheet, which identifies [NAME] by name and which is not part of the decision, must not be made public; and (b) the decision itself, which does not contain [NAME]’s name, may be made public.

Before:

Mr E Mitchell, Judge of the Upper Tribunal Between: [NAME] - v - [NAME] 1st Respondent & Secretary of State for Justice 2nd Respondent

Before: Upper Tribunal Judge Mitchell Decided on consideration of the papers Representation: For the Appellant, Mr [NAME] QC and [NAME] of counsel, instructed by [NAME]. For the 2nd Respondent, [NAME] of counsel, instructed by the Government Legal Department. The 1st Respondent took no part in the proceedings.

[NAME]/916/2020 2

DECISION The decision of the Upper Tribunal is to allow the appeal. The decision of the Mental Health Review Tribunal for Wales taken on 1 April 2020 under reference TR29167 involved an error on a point of law. [NAME] 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remake it as follows:

1. The Mental Health Review Tribunal for Wales has jurisdiction to determine the application made on 21 January 2020 by [NAME] Mr S under [NAME] 70 of the Mental Health Act 1983.

2. Subject to (3) below, the tribunal is to determine the application under the powers conferred on the tribunal by [NAME] 73 of the 1983 Act. 3. (2) above does not apply if [NAME] is no longer a [NAME] by virtue of a hospital order under [NAME] 37 of the 1983 Act together with a restriction order under [NAME] 41 in which case the tribunal is to determine whether it retains jurisdiction to determine [NAME]’s application and, if so, under which of its powers it is to be determined.

4. The case file is to be put before the President of the Mental Health Review Tribunal for Wales as soon as possible.

REASONS FOR DECISION Introduction and summary 1. In these reasons: - “1983 Act” means the Mental Health Act 1983;

- “[NAME])” means the Mental Health Review Tribunal for Wales;

- “[NAME] 37/41 [NAME]” means a [NAME] by virtue of a hospital order under [NAME] 37 of the 1983 Act together with a restriction order under [NAME] 41;

- “[NAME]” means a [NAME] by virtue of a transfer direction under [NAME] 47 of the 1983 Act together with a restriction direction under [NAME] 49.

[NAME]/916/2020 3 2. The 1983 Act creates a number of different types of [NAME]. The issue here is whether a tribunal application made when a [NAME] was one type of [NAME] remains valid if, before it is determined, [NAME] becomes a different type of [NAME]. In this case, [NAME] was originally a [NAME] by virtue of a transfer direction together with a restriction direction and, subsequently, a [NAME] by virtue of a hospital order together with a restriction order. I decide that the [NAME]) erred in law in finding that it lacked jurisdiction to determine the application made when [NAME] was subject to transfer/restriction directions. Background 3. On 14 May 2008, [NAME], as I shall refer to him, was made subject to a sentence of imprisonment for an indeterminate period for public protection. In April 2016, the Secretary of State gave a transfer direction coupled with a restriction direction so that [NAME] became a [NAME]. He was duly transferred to a psychiatric hospital.

4. On 5 March 2020, the Court of Appeal allowed Mr S’s appeal against his sentence of imprisonment for public protection. [ADDRESS] quashed that sentence and replaced it with a hospital order together with a restriction order under sections 37 and 41 of the 1983 Act respectively. Under the Court of Appeal’s decision, Mr S became a [NAME] 37/41 [NAME].

5. Before the Court of Appeal gave its decision, Mr S exercised his right to apply to the [NAME]) for review of his detention under the 1983 Act. At the date of the Court’s decision, that application remained undetermined. Following the Court’s decision, the [NAME]) addressed the validity of the application made by Mr S when he was a [NAME]. The [NAME]) was comprised of a Deputy President sitting alone. The tribunal’s decision 6. The [NAME]) gave its decision, on 1 April 2020, 25 days after that of the Court of Appeal. The [NAME]’s postponement request of 17 March 2020 shows that she assumed that Mr S’s undetermined tribunal application would, as she put it, ‘roll over’ and be treated as an application duly made by a [NAME] 37/41 [NAME].

7. The [NAME])’s decision of 1 April 2020 was made after consideration of the [NAME]’s written submissions but without holding a hearing.

8. The [NAME]) observed that, when Mr S made his application, the tribunal had “power to entertain it by virtue of s.69(2)(b)” of the 1983 Act. I do not understand that observation in the light of the restrictions to which all types of [NAME] are subject (see below). The scope of [NAME] 69(2)(b) is not an issue on this appeal but I

[NAME]/916/2020 4 mention it here in case the tribunal wishes to reconsider its views on the operation of that provision.

9. The [NAME]) reminded itself of the 1983 Act’s prohibition on a first tribunal application, in the case of a [NAME] 37/41 [NAME] during the six months following imposition of a restriction order ([NAME] 70 of the 1983 Act).

10. The [NAME] argued that the application he made as a [NAME] did not lapse upon him becoming a [NAME] 37/41 [NAME]. The representative cited the High Court’s decision in R (MN) v the Mental Health Review Tribunal [2008] EWHC 3383 (Admin), which the [NAME]) summarised as follows: “the Court accepted that an application made under s.47/49 lapses when the Restriction Direction ceases but accepted that to avoid delay the Tribunal could treat the application as if it were an application under s.69(2)(a) which would mean that the Tribunal could hear the application within the first 6 months of the deemed Hospital Order.” 11. The [NAME]) expressed the view that either the solicitor’s submissions or the High Court’s construction of the 1983 Act (it is not clear which) “flies in the face of the plain reading of s.70 of the Act which prevents [Mr S], once detained under s.37/41, from applying to the Tribunal in the first six months of the Order”. If the [NAME]) read MN as a decision concerning the consequences of a [NAME] becoming a different type of [NAME], it misread the decision. As explained below, MN concerned a tribunal application that was pending when a [NAME] ceased to be a [NAME] altogether.

12. In the [NAME])’s determination, once Mr S’s sentence of imprisonment for public protection was quashed by the Court of Appeal, his transfer and restriction directions “fell and [NAME] became subject to the regime imposed by s.70 of the Act so far as his right to apply to the Tribunal is concerned”.

13. Applying that reasoning, the [NAME]) found that the application made by [NAME] when he was still a [NAME] “ceased to have effect and cannot be entertained”. In other words, the tribunal found that it had no jurisdiction to consider the application. It follows that, on the tribunal’s finding, [NAME] could not make a tribunal application until six months had elapsed from the date on which the Court of Appeal imposed a hospital order together with a restriction order. Grounds of appeal 14. The President of the [NAME]) granted Mr S permission to appeal to the Upper Tribunal. The President expressed the view that the appeal “raises issues which do

[NAME]/916/2020 5 not appear to have been considered in the higher courts” and “there is a need for the law on this point to be clarified”. Legal Framework Legislation 15. Mr S was sentenced to imprisonment for public protection under [NAME] 225(3) of the Criminal Justice Act 2003. By virtue of [NAME] 225(4), that was a sentence of imprisonment for an indeterminate period and means that the sentencing court must have been of the opinion that there was “a significant risk to members of the public of serious harm occasioned by the commission by [Mr S] of further specified offences” (see [NAME] 225(1)(b)). 16. [NAME] 225(3) of the Criminal Justice Act 2003 was repealed by [NAME] 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with effect from 3 December 2012. However, this abolition of sentences of imprisonment for public protection was of no effect in relation to individuals, such as this [NAME], who were convicted before 3 December 2012 (see article 6(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 4 and Saving Provisions) Order 2012). 17. [NAME] 47(1) of the Mental Health Act 1983 confers power on the Secretary of State by warrant to direct that a person serving a sentence of imprisonment be removed to and detained in a hospital for medical treatment. Such a direction is referred to by the 1983 Act as a transfer direction and has the same effect as a hospital order made under Part III of the 1983 Act.

18. Where the Secretary of State gives a transfer direction, he may also under [NAME] 49 of the 1983 Act give a restriction direction that is a direction that the special restrictions in [NAME] 41 apply. The special restrictions include: (a) disapplication of the provisions of Part II of the 1983 Act relating to duration, renewal and expiration of authority for [NAME]’s detention; (b) [NAME] remains liable to be detained in hospital “until he is duly discharged under…Part II or absolutely discharged under [NAME] 42, 73, 74 or 75”; (c) no application in respect of [NAME] may be made to the tribunal under [NAME] 66 or 69(1). [NAME] 66 specifies the periods within which applications may be made to the tribunal for those who are not [NAME] patients. [NAME] 69(2) provides as follows: “(2) Where a person detained in a hospital—

[NAME]/916/2020 6 (a) is treated as subject to a hospital order…by virtue of [NAME] 41(5) above…or (b) is subject to a direction having the same effect as a hospital order by virtue of [NAME] 47(3)… above, then, without prejudice to any provision of Part II of this Act as applied by [NAME] 40 above, that person may make an application to the appropriate tribunal in the period of six months beginning with the date of the order or direction mentioned in paragraph (a) above or, as the case may be, the date of the direction mentioned in paragraph (b) above.” 19. [NAME] 50(2) of the 1983 Act provides that a restriction direction, in the case of a person serving a sentence of imprisonment, ceases to have effect on the person’s release date. 20. [NAME] 70 of the 1983 Act provides as follows: “A [NAME] who is a [NAME] within the meaning of [NAME] 79 below and is detained in a hospital may apply to the appropriate tribunal— (a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order, hospital direction or transfer direction; and (b) in any subsequent period of 12 months.” 21. [NAME] 77(1) of the 1983 Act provides as follows: “(1) No application shall be made to the appropriate tribunal by or in respect of a [NAME] under this Act except in such cases and at such times as are expressly provided by this Act.”

22. The definition of “[NAME]” in [NAME] 79 of the 1983 Act includes both a [NAME] 37/41 [NAME] and a [NAME].

23. In the case of a [NAME] 37/41 [NAME] 73 of the 1983 Act provides the [NAME])’s powers of discharge. The tribunal is required to direct absolute discharge in the circumstances provided for by [NAME] 73(1), briefly, where the tribunal is not satisfied that the 1983 Act’s detention criteria continue to apply but is satisfied that it is not appropriate for [NAME] to remain liable to be recalled to hospital for further treatment. If the tribunal is not satisfied as to the detention criteria

[NAME]/916/2020 7 but is satisfied that it is appropriate for [NAME] to remain liable to recall, it must direct conditional discharge instead.

24. In the case of a [NAME], the [NAME])’s powers are provided by [NAME] 74 of the 1983 Act and reflect the fact that such patients are also subject to an underlying sentence of imprisonment. If the tribunal is of the opinion that, were [NAME] subject to a restriction order, he would be entitled to an absolute or conditional discharge, the tribunal must notify the Secretary of State of that opinion. What happens next is dependent on the Secretary of State but may include [NAME]’s absolute or conditional discharge ([NAME] 74(2)) or his transfer to prison ([NAME] 74(3)). 25. [NAME] 11(3) of the Criminal Appeal Act 1968 provides as follows: “(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may— (a) quash any sentence or order which is the subject of the appeal; and (b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.” 26. Insofar as relevant, “sentence” is defined by [NAME] 50(1) of the 1968 Act as follows: “(1) In this Act “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender including, in particular— (a) a hospital order under Part III of the Mental Health Act 1983, with or without a restriction order…” 27. In [NAME] 50(1)(a) of the 1968 Act, “restriction order” has the meaning given by [NAME] 145(1) of the 1983 Act (see [NAME] 51(2) of the 1968 Act). Case law 28. The High Court’s decision in R(MN) v the Mental Health Review Tribunal [2008] EWHC 3383 (Admin) was the only case law referred to in the [NAME])’s reasons for

[NAME]/916/2020 8 its decision. MN concerned a [NAME] who had been a [NAME]. The decision states, at paragraph 5, that [NAME] ceased to be a [NAME] because “during the period of his detention the sentence - or the operative part thereof - had partly expired with the result that he ceased to be a [NAME]”.

29. Like the present [NAME] in MN applied to the tribunal when he was a [NAME]. Unlike the present case, however, [NAME] in MN lost his [NAME] status before his tribunal application had been determined. The mental health review tribunal found that [NAME]’s application was of no effect once he ceased to have the status of a [NAME]. 30. [NAME]’s situation, once he ceased to be subject to a restriction direction, was analogous to that of a [NAME] 37/41 [NAME] whose [NAME] 41 restriction order ceases to have effect and remains subject, as Plender J put it, only to an “ordinary hospital order”. [NAME] argued that his extant tribunal application survived the loss of his [NAME] status so that, as well as his right to have that application determined, he had the further right to make a fresh application as a [COMPANY] under [NAME] 69 of the 1983 Act (such a right being free of the prohibition on making an application during the first six months of detention that applies to [NAME] patients).

31. Plender J rejected [NAME]’s argument; he could not rely on the “old [NAME] 70 application”. [NAME] now had a fresh right to make an immediate application under [NAME] 69, as a [COMPANY], to treat the old application as of no effect was not inconsistent with [NAME]’s right under Article 5 of the European Convention on Human Rights of access to a tribunal “capable of giving determinations within a reasonable time and regular reviews of [NAME]’s status”.

32. The Upper Tribunal’s decision in AD’A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC) concerned a [NAME] who was originally liable to be detained for treatment under [NAME] 3 of the 1983 Act but was subsequently received into guardianship under [NAME] 7 of that Act. In the interim, she applied to the First-tier Tribunal for review of her liability to be detained under [NAME]

3. At no point, therefore, had [NAME] been a [NAME].

33. The First-tier Tribunal found that, once [NAME] had been received into guardianship, it had no jurisdiction to decide the application made when she was subject to [NAME] 3 of the 1983 Act. The tribunal struck out the application.

34. On appeal, Upper Tribunal Judge Jacobs noted, at paragraph 10, that “a tribunal’s jurisdiction is different from the powers it has within that jurisdiction” and “these may change if the law changes or if the circumstances of the case change”. He went on in paragraph 18 to hold that, despite a clear alteration in [NAME]’s legal status in consequence of which she acquired a new right of appeal, and the

[NAME]/916/2020 9 respondent to the proceedings became a local authority, the tribunal’s jurisdiction to determine [NAME]’s application survived: “There is no reason in principle why any of those changes should affect the tribunal’s jurisdiction under the existing application. Indeed, the survival of that jurisdiction is consistent with, perhaps even required by, the policy of judicial supervision. And the tribunal has the necessary powers to make the changes to the proceedings consequent upon [NAME]’s change of status.” The arguments 35. No party requests a hearing of this appeal and I am satisfied that the appeal may be fairly determined on written submissions. [NAME] 36. [NAME]’s written submissions were drafted jointly by counsel, Mr [NAME] QC and [NAME]. 37. [NAME] argues that, by virtue of [NAME] 70 of the 1983 Act, a [NAME] is clearly prevented from applying to the tribunal until at least six months have elapsed since s/he became a [NAME].

38. The way in which [NAME] 11(3) of the Criminal Appeal Act 1968 confers functions on the Court of Appeal shows that if a prisoner’s sentence is quashed, the Court’s replacement sentence or order takes effect not from the date of the order but from the date of the now quashed sentence. If a sentence is quashed it is void ab initio and a nullity. Once a sentence is quashed, the Court has power under [NAME] 11(3)(b) to pass a sentence or order “in place of it”. For a fresh sentence or order to take the place of a quashed sentence, it must take effect as from the date of the quashed sentence. Any other interpretation of [NAME] 11(3) would be absurd and should be avoided.

39. If a replacement sentence/order took effect from the date of the Court of Appeal’s order then, in Mr S’s case, since his sentence of imprisonment for public protection had become a nullity, “there is no sentence to which prisoners are subject in the period between sentence and appeal”. The undesirable consequences of this include “that all those who had been detained between sentence and successful appeal against sentence would have an action for false imprisonment”: see R v [NAME] of Brockhill Prison ex parte Evans (no. 2) [2001] 2 AC 19.

40. The correct legal analysis is that, as a result of the Court of Appeal’s order, [NAME] was treated as if a hospital order were imposed on 14 May 2008 (the original sentence date). On that basis, Mr S had the same tribunal rights as any other

[NAME]/916/2020 10 [NAME] 37/41 [NAME] namely to apply to the tribunal once he had been a [NAME] for six months and, thereafter, every 12 months.

41. Under the [NAME])’s approach, Mr S was disadvantaged by his successful appeal against his sentence of imprisonment for public protection. Throughout, he remained a [NAME] and all that changed was the type of [NAME]. This switch from one type of [NAME] to another was the only reason for denying him the review of detention to which he would otherwise have been entitled. Such an outcome was absurd and contrary to [NAME] 11(3) of the Criminal Appeal Act 1968 which requires the Court of Appeal to ensure that “taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below”.

42. The [NAME])’s approach may also result in breach of a [NAME]’s right under Article 5(4) of the European Convention on Human Rights to a speedy and effective hearing to challenge the lawfulness of detention: see R (C) v Mental Health Review Tribunal [2002] 1 WLR 176.

43. Finally, [NAME] 70(a) of the 1983 Act prohibits applications during the first six months of [NAME] status. However, Mr S made his application, under [NAME] 70(b), before the Court of Appeal made his order. Even if [NAME] 70(a) applies to patients who attain [NAME] status on appeal, it would not have ‘bitten’ on Mr S because since 5 March 2020 he had made no tribunal application.

44. Mr S made a valid application to the [NAME]) and the tribunal was not permitted to surrender its jurisdiction and ignore his application. The higher courts have consistently held that extant tribunal applications remain valid and must be determined irrespective of changes to a [NAME]’s 1983 Act status. For recent confirmation, see the Upper Tribunal’s decision in AD’A v Cornwall Partnership NHS Foundation Trust [2020] UKUT 110 (AAC). The Upper Tribunal should declare that the [NAME]) has jurisdiction to hear the application made by Mr S before the Court of Appeal quashed his sentence of imprisonment for public protection. In practical terms, it does not matter whether the tribunal proceeds under [NAME] 73 or 74 of the 1983 Act since the tests are materially the same. Respondents 45. Lamentably, [NAME] have failed to respond to Upper Tribunal case management directions which required that organisation to supply a written response to this appeal. Since this appeal is now supported by the Secretary of State for Justice, I shall not prolong the proceedings by taking steps to require [NAME] to comply with directions. However, that organisation should not assume that the Upper Tribunal, as a matter of course, permits its case management directions to be disregarded. The Upper Tribunal has the power to order a senior

[NAME]/916/2020 11 official or director of an organisation that is a party to proceedings to provide an explanation in open court for its failure to comply with case management directions (see rule 16 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

46. The Secretary of State for Justice supports this appeal. His written response to the appeal was admitted by a Registrar of the Upper Tribunal who granted an extension of time for complying with directions requiring supply of a response.

47. The Secretary of State’s written response, drafted by [NAME] of counsel, submits that the [NAME]) erred in law by failing to adopt a purposive construction of [NAME] 70 of the 1983 Act such being necessary to secure compliance with Article 5(4) of the European Convention on Human Rights. The Secretary of State further submits that the tribunal’s decision was inconsistent with the ratio of AD’A v Cornwall Partnership NHS Foundation Trust. The Secretary of State invites the Upper Tribunal to allow this appeal and order reinstatement of the application to the [NAME] (Wales) made by Mr S on 21 January 2020.

48. AD’A also concerned a [NAME] whose 1983 Act status altered while a tribunal application was extant. In that case [NAME] went from being liable to detention for treatment under [NAME] 3 of the Act to being received into guardianship under [NAME]

7. Upper Tribunal Judge Jacobs held as follows: “The tribunal’s powers are conferred on it in exercise of its jurisdiction. They are not themselves matters of jurisdiction. The jurisdiction remains the same: to decide whether to discharge [NAME]. The conditions that decide how the jurisdiction to discharge is to be exercised have changed, but the ultimate issue for the tribunal has not…”.

49. The Secretary of State submits that the present case is materially indistinguishable from AD’A. The subject matter of Mr S’s tribunal application – whether or not he should be detained under the 1983 Act – did not change when the legal basis for his detention changed as a result of the Court of Appeal’s order. The detention itself continued. To effectively remove the tribunal’s jurisdiction for six months cannot be considered consistent with the 1983 Act’s policy of “treatment not containment” (B v Secretary of State for Justice [2012] 1 WLR 2043) since it amounts to a dilution of judicial supervision.

50. The Secretary of State also argues that the [NAME])’s construction arguably fails to secure the prompt review of detention guaranteed by Article 5(4). The Upper Tribunal’s obligations under sections 3 and 6 of the Human Rights Act 1998 call for the purposive construction contended for by the Secretary of State.

[NAME]/916/2020 12 Conclusions 51. I agree with the Appellant and the Secretary of State that the [NAME]) erred in law in finding that it lacked jurisdiction to determine the application made when [NAME] was a [NAME] once he had become a [NAME] 37/41 [NAME]. 52. [NAME] has remained throughout a [NAME]. He clearly made a valid tribunal application, for the purposes of [NAME] 77(1) of the 1983 Act, as a [NAME]. [NAME] 70 of the 1983 Act confers the right to apply to the tribunal on [NAME] patients at large. At this stage, no distinction is drawn between different types of [NAME]. So far as the tribunal’s powers are concerned, different types of [NAME] are treated differently. The tribunal’s powers in relation to [NAME] 37/41 [NAME] patients are conferred by [NAME] 73 of the 1983 Act. For other types of [NAME], including a [NAME], the tribunal’s powers are conferred by [NAME]

74. The tribunal’s powers are obviously constructed differently to reflect the fact that, for some [NAME] patients, discharge from detention under the 1983 Act will not necessarily lead to discharge from all forms of detention, which was the present [NAME]’s situation until the Court of Appeal quashed his sentence of imprisonment for public protection. There is nothing in the differences between sections 73 and 74 that necessarily nullifies an application made by a [NAME] if, before its determination, [NAME] becomes a [NAME] 37/41 [NAME]. The substantive tests are materially the same. For example, [NAME] 74(1)(a) requires the tribunal to ask itself whether [NAME] would, if subject to a restriction order, be entitled to absolute or conditional discharge under [NAME]

73. The material differences concern what happens next, once the tribunal determines the application.

53. If Parliament had intended such a disadvantageous measure as to nullify a tribunal application made by a [NAME] 47/49 [NAME] who, in the meantime, became a [NAME] 37/41 [NAME], I would expect it either to use clear wording to that effect or to cast the tribunal’s powers in relation to [NAME] 37/41 [NAME] patients in such a way that they could not properly be exercised in relation to an application that began life as one made by a [NAME] 47/49 [NAME]. Parliament has done neither and I therefore hold that the [NAME]) erred in law in finding that it lacked jurisdiction to consider the application made by [NAME] when his status was that of a [NAME].

54. The present case may be readily distinguished from MN because that case involved a [NAME] who ceased to be a [NAME] before his tribunal application had been determined. The falling away of restrictions gave rise in that case to an

[NAME]/916/2020 13 immediate right to make a fresh tribunal application as an unrestricted [NAME]. That was not the case for the present [NAME].

55. I do not need to rely on Upper Tribunal Judge Jacob’s reasoning in AD’A. The present case is more straightforward because, unlike AD’A, it involved no change in a [NAME]’s 1983 Act status while a tribunal application was pending.

56. There is also no need for me to deal with the argument that the [NAME])’s approach was flawed because it failed to seek a construction of the 1983 Act that was consistent with Court of Appeal’s duty under the 1968 Act not to deal with an offender more severely than did the court below, nor the argument that the tribunal’s construction was incompatible with Article 5(4). But I will say that both arguments, in my opinion, have force. Disposal of this appeal 57. [NAME] 78A(3) of the 1983 Act provides as follows: “[NAME] 12 of the Tribunals, Courts and Enforcement Act 2007 (proceedings on appeal to the Upper Tribunal) applies in relation to appeals to the Upper Tribunal [against a decision of the [NAME])] under this [NAME] as it applies in relation to appeals to it under [NAME] 11 of that Act, but as if references to the First-tier Tribunal were references to the Mental Health Review Tribunal for Wales.” 58. [NAME] 12(1) of the 2007 Act provides that [NAME] 12(2) applies if the Upper Tribunal, in deciding an appeal, finds that the decision in question involved the making of an error on a point of law. I find that the [NAME])’s decision involved the making of an error on a point of law.

59. The Upper Tribunal’s powers under [NAME] 12(2) of the 2007 Act include power to set aside a tribunal’s decision and, if it does, re-make the decision. I set aside the [NAME])’s decision and re-make it. My re-made decision is that the [NAME]) has jurisdiction to determine the application made by [NAME] in January 2020 under [NAME] 70 of the 1983 Act, when he was a [NAME], in the exercise of powers conferred on the tribunal by [NAME] 73 of the 1983 Act (unless there has been an alteration in [NAME]’s legal status of which I am unaware) . I have directed that the case file be put before the President of the [NAME]) in order that she may take consider whether any case management steps are required. All this is reflected in the decision given above.

[NAME]/916/2020 14 Progress of these Upper Tribunal proceedings 60. It is right that I conclude by apologising to [NAME], on behalf of the Upper Tribunal’s Administrative Appeals Chamber, for delays in progressing these proceedings. As I have said, this was partly due to the conduct of [NAME] who saw fit to ignore the Upper Tribunal’s case management directions as well as attempts made by registrars of the Upper Tribunal to chase up that organisation’s response to [NAME]’s appeal. But, regrettably, that was not the only cause of delay.

61. On 23 February 2021, the [NAME] emailed the offices of the Administrative Appeals Chamber of the Upper Tribunal stating that, in the light of the parties’ agreement, “ask that given there seems to be no dispute that this can be placed before a Judge without further delay”. The file was not referred to me until the end of May 2021. Like many parts of the judiciary, the Administrative Appeals Chamber has been put under pressure by changes to working practices, and staff absences, in connection with the Covid-19 pandemic. Nevertheless, delays such as this cannot be justified. I have been assured that arrangements are in place so that mental health cases are treated as priority cases by the staff who provide administrative support to the Chamber.

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal 29 June 2021