Case No: C3/2010/0796
Neutral Citation Number: [2010] EWCA Civ 1273
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Judge Rowland
Upper Tribunal Administrative Appeals Chamber
Appeal No. M/695/2009
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12th November 2010
Before :

LORD JUSTICE SEDLEY
LORD JUSTICE MOSES 
and
LORD JUSTICE SULLIVAN
- - - - - - - - - - - - - - - - - - - - -
Between :

	RH	Appellant	
	- and -		
	SOUTH LONDON AND MAUDSLEY NHS FOUNDATION TRUST AND ANR	First Respondent	
	-and-		
	SECRETARY OF STATE FOR JUSTICE	Second          Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Miss Laura Davidson (instructed by Steel & Shamash) for the Appellant
Vikram Sachdeva  (instructed by Bates Wells & Braithwaite) for the First Respondent
Paul Greatorex (instructed by The Treasury Solicitors) for the Second Respondent

Hearing dates : Thursday, 28th October 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Sullivan : 
Introduction
1.	This is an appeal with the permission of the Upper Tribunal (Administrative Appeals Chamber) (“UT”) against the UT’s decision dated 8th February 2010 (corrected 15th March 2010) dismissing the Appellant’s appeal against the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) (“FTT”) on 18th November 2008 rejecting his application under section 75 (2) of the Mental Health Act 1983 (“the Act”) for a direction under section 75(3)(b) that the restriction order imposed upon him on 14th March 1978 under the Mental Health Act 1959 (“the 1959 Act”) should cease to have effect so that he would cease to be liable to be detained under a hospital order.
Factual Background
2.	The hospital order and the restriction order were made following the Appellant’s conviction on 14th March 1978 on two counts of manslaughter.  In October 1977 he had killed his two young children.  The older child, aged 9, was poisoned and then drowned in the bath.  The younger child, aged 5, was poisoned on the following day, and then suffocated.  Eight days later the Appellant attempted to commit suicide by poisoning, following which he was arrested.  He was admitted to Broadmoor Hospital on 6th April 1978, transferred to Ashworth Hospital in 1983, and was conditionally discharged from Ashworth in 1986.
3.	On 26th November 1997 he was recalled to hospital because he had faxed threatening letters and messages to his probation officer and mental health professionals.  He was admitted to the Bracton Centre, but was subsequently granted a conditional discharge by a Mental Health Review Tribunal on 4th November 1998.  At the time of the hearing before the FTT on 18th November 2008 the Appellant was subject to three conditions.  The first required him to live at a particular address.  The second and third conditions were:
“2.	That he should be under the medical supervision of his
 		RMO and accept whatever medical treatment he may 
 		from time to time prescribe and attend outpatients 
  		appointments as necessary.

3.		That he should be under the supervision and direction 
  		of a social worker appointed to his case.”
Since 18th November 1998 the Appellant had been living in the community in compliance with those conditions.
4.	The Appellant’s application under section 75(3)(b) for the discharge of his restriction order was supported by his Responsible Medical Officer (RMO), now Responsible Clinician (RC) Dr Hukin, by his social supervisor, Mr Oguntoyinbo, and by his psychotherapist, Mr Hillier-Davies.  In addition to hearing oral evidence from the Appellant, Dr Hukin and Mr Oguntoyinbo, the FTT considered written reports by Mr Hillier-Davies and an independent forensic psychiatrist, Dr Boast, who also supported the Appellant’s application.  The FTT also considered a written statement and supplementary statements from the Secretary of State opposing the application.  The only opposition to the application was that of the Secretary of State.
The Statutory Scheme
5.	Although the Court in 1978 dealt with the Appellant under the 1959 Act, it is convenient to consider the statutory scheme by reference to the current provisions in the Act.  Following conviction for an offence punishable by imprisonment, the Court has power to make a hospital order under section 37 of the Act if it is satisfied:
“….that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that….the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his conditions.…[and]….the court is of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the offender, and to the other available means of dealing with him, that the most suitable method of disposing of the case is by way of [a hospital]….order….”: subsections 37(1) and (2).
6.	Section 41(1) provides that, where the Court makes a hospital order, it may also make a restriction order if:
“it appears to the Court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section…. .”
7.	The “special restrictions” referred to in sub-section (1) include the following modifications to the regime under Part II of the Act:
“(a)	none of the provisions of Part II of this Act relating to 
 		the duration, renewal and expiration of authority for 
 		the detention of patients shall apply, and the patient 
 		shall continue to be liable to be detained by virtue of 
 		the relevant hospital order until he is duly discharged 
 		under the said Part II or absolutely discharged under 
 		section 42, 73, 74 or 75 below:” subsection 41(3).
8.	A patient who is subject to a hospital order and a restriction order may apply to a Mental Health Review Tribunal (now the FTT) to be discharged.  Section 73 provides that on such an application:
“the tribunal shall direct the absolute discharge of the patient if-
(a)	the tribunal are not satisfied as to the matters 
 		mentioned in paragraph (b)(i) or (ii) of section 72(1) 
 		above; and

(b) 	the tribunal are satisfied that it is not appropriate for 
 		the patient to remain liable to be recalled to hospital 
 		for further treatment. 

(2)  Where in the case of any such patient as is mentioned in 
 	   subsection (1) above- 

 	  (a) 	paragraph (a) of that subsection applies; but

 	  (b) 	paragraph (b) of that subsection does not apply,

       the tribunal shall direct the conditional discharge of the 
       patient.

(3)   Where a patient is absolutely discharged under this section 
 	    he shall thereupon cease to be liable to be detained by 
        virtue of the relevant hospital order, and the restriction 
        order shall cease to have effect accordingly.

(4)   Where a patient is conditionally discharged under this 
 	    section-

  	   (a)  he may be recalled by the Secretary of State under 
 		subsection (3) of section 42 above as if he had been 
 		conditionally discharged under subsection (2) of that 
  	         section; and

       (b) the patient shall comply with such conditions (if 
             any) as may be imposed at the time of discharge by
             the tribunal or at any subsequent time by the  
             Secretary of State.”
9.	The matters mentioned in paragraph (b)(i) and (ii) of section 72(1) are:
“(i)	that he is then suffering from mental illness, 
 		psychopathic disorder, severe mental impairment or 
 		mental impairment or from any of those forms of 
 		disorder of a nature or degree which makes it 
 		appropriate for him to be liable to be detained in a 
 		hospital for medical treatment; or

(ii) 	that it is necessary for the health or safety of the 
 		patient or for the protection of other persons that he 
 		should receive such treatment;…. .”
10.	There is no suggestion that the decision to conditionally discharge the Appellant on 4th November 1998 was unlawful.  In particular, it is not suggested that an absolute discharge would have been justified at that time.  As a conditionally discharged patient subject to a restriction order the Appellant was entitled to apply to the FTT under section 75(2) of the Act.  Subsection 75(3) provides that:
“Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the tribunal may-

(a)	vary any condition to which the patient is subject in 
   		connection with his discharge or impose any condition 
   		which might have been imposed in connection 
  		therewith; or

(b) 	direct that the restriction order ….to which he is 
  		subject shall cease to have effect; …. .”
The SC Case
11.	The manner in which the FTT should exercise the discretion conferred by section 75(3) was considered by Munby J (as he then was) in R (on the application of SC v The Mental Health Review Tribunal and the Secretary of State for Health [2005] EWHC 17 (Admin) (“SC”).  Munby J rejected the submission that section 75(3) did not provide a sufficient degree of forseeability, saying in paragraph 57 of his judgment that the Tribunal would exercise its powers against the background of the statutory framework contained in the Act:
“Accordingly the Tribunal when exercising these powers will need to consider such matters as the nature, gravity and circumstances of the patient’s offence, the nature and gravity of his mental disorder, past, present and future, the risk and likelihood of the patient re-offending, the degree of harm to which the public may be exposed if he re-offends, the risk and likelihood of a recurrence or exacerbation of any mental disorder, and the risk and likelihood of his needing to be recalled in the future for further treatment in hospital.  The Tribunal will also need to consider the nature of any conditions previously imposed, whether by the Tribunal or by the Secretary of State, under sections 42(2), 73(4)(b) or 73(5), the reasons why they were imposed and the extent to which it is desirable to continue, vary or add to them.”
12.	Munby J. continued in paragraph 59:
“The consequence of an order under section 75(3)(b) is that the restriction order ceases to have effect; in other words, that what was previously only a conditional discharge becomes in effect an absolute discharge.  But, as section 73 demonstrates, the difference between the two is the difference between the patient who is, and the patient who is no longer, liable to be recalled to hospital for further treatment.  So, in effect, one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) is whether it is – as section 73(1)(b) puts it – “satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.”  If the Tribunal is not so satisfied, then it is difficult to see that it could be appropriate for it to make an order under section 75(3)(b).”
The FTT’s Decision
13.	The FTT referred to SC, set out both the passage in paragraph 57 and the “key question” in paragraph 59 of Munby J’s judgment, and said that it had followed the guidance in that decision.  Having summarised the factual background, the FTT said in paragraphs 8 – 17 (there are two paragraph 15s):
“8.	On the evidence of Dr Hukin, the Responsible Clinician, 
 	we find that [RH] continues to suffer from mental 
 	disorder consisting of a Personality Disorder with mainly 
 	features of borderline type with some dissocial traits.  He 
 	has a history of abnormal emotional development dating 
 	from early adolescence marked by anxiety concerning his 
 	body and confusion in relation to sexuality, and difficulty 
 	with interpersonal relationships.  In the past he has had 
 	marked feelings of inferiority and a tendency to use 
 	grandiose conversational style.  Gambling and alcohol 
 	remain persistent problems.

9. 	We are not satisfied that it is not appropriate for Mr
 	[RH] to remain liable to be recalled for the following 
 	reasons:

10. 	[RH] continues to suffer from mental disorder of 
 	the nature and degree described above and the index 
 	offences were among the most serious possible offences.
 	
11. 	He was subject to recall from conditional discharge in 
 	1997 in circumstances that gave rise to serious anxiety as 
 	to the safety of members of the public and in response to 
 	appeals by [RH], accompanied by threats, to be 
 	recalled. 

12.	Since his conditional discharge his life has not been 
 	without difficulties.  He has been able to cope but we are
 	satisfied that the support he received under his conditional 
 	discharge was very important to his capacity to cope.

13. 	Although both members of his present support team, Dr 
 	Hukin and Mr Oguntoyinbo, support absolute discharge, 
 	their evidence, both written and oral, was that [RH] 
 	is well supported in his present arrangements and even 
 	more important, benefits from that support and related 
 	support such as the availability of the services of Dr 
 	Hillier- Davies.  [RH] in his evidence confirmed all 
 	of that.

14.	The report of the independent psychiatrist, Dr Boast, 
 	states as follows:

 	“5. 	In conclusion it can never be said that someone 
 	is not a risk.  Individuals who kill have a higher risk of 
 	killing again that the general population.  On the other 
 	hand….[RH] falls into a group of restricted patients 
 	who are relatively unlikely to seriously re-offend again.

 	6.		In addition he seems to appreciate that not being 
 	on a restriction order is not the same thing as not having 
 	input from a psychiatric team.  He is someone who should 
 	have ongoing indefinite input because there is an element 
 	of vulnerability and he could have the sort of difficulties 
 	in the future that he has had since he left hospital; in 
 	1999.”

15.	We accept all of Dr Boast’s analysis of [RH’s] position 
 	but do not share his conclusions.  We agree that [RH] is 
 	“relatively unlikely to seriously offend again” but we 
 	cannot conclude from that that it is not appropriate for 
 	him to be liable to recall.  We agree also that he continues 
 	to have vulnerabilities that may well entail the necessity 
 	of psychiatric intervention and, we 
 	would say, possible recall.

15.	We have considered all the evidence before us very 
 	carefully and are satisfied that although, with his present 
 	level of support under his conditional discharge, [RH’s]
 	condition is stable, it can, at most, be said, as Dr Boast 
 	states, that “he is relatively unlikely to seriously offend 
 	again”.  We bear in mind the index offences and the 
 	circumstances that led to his recall in 1997 as set out at 
 	Para 7 above.  He is a man with continuing 
 	vulnerabilities.

16.	Our conclusion is that there remains a real risk to the 
 	public and to [RH] from his mental disorder with 
 	an attendant risk of his recall to hospital.

17.	We consider that the present conditions (modified earlier 
 	this year by the tribunal in its decision of 27 May 2008), 
 	meet any such risk admirably and with those conditions in 
 	place such risk is minimised.  We conclude that it is 
 	desirable to continue the present conditions and that is our 
 	order.”
The FTT directed that its decision together with that of the tribunal dated 20th May 2008 be put before any future tribunal.
The UT’s Decision
14.	Permission to appeal to the UT was granted on 31st December 2008.  There were only three grounds of appeal, as summarised by Professor Jeremy Cooper when granting permission to appeal:   
“i.	The tribunal unlawfully failed to give adequate reasons for 
 	its decision.

ii. 	The tribunal acted irrationally by failing to deal adequately 
 	or at all with the medical and social work evidence.

iii.The tribunal erred in law by conflating his need for ongoing 
 	support and psychiatric treatment, with the question should 
 	the restriction order continue.”
15.	There was no suggestion that Munby J’s formulation of the “key question” in paragraph 59 of SC (para.12 above) was wrong, and no suggestion that there had been any interference with the Appellant’s rights under Article 8 of the European Convention on Human Rights (“the Convention”).  Although there were three grounds of appeal to the UT the appeal was, in effect, a straightforward challenge to the adequacy of the FTT’s reasoning.  As the UT said in paragraph 7 of its decision:
“7.	Although three numbered grounds of appeal are advanced, there are really only two, because, as Mr Dunlop, who appeared on behalf of the Appellant, accepted, the second numbered ground (irrational failure to deal adequately or at all with the medical and social work evidence) is merely an aspect of the first (inadequate reasons).  Even the third numbered ground (conflation of two issues that should have been kept separate) is related to the tribunal’s reasoning.”
16.	Having set out the evidence before the FTT, including paragraph 7 of Dr Boast’s report in which he had said:
“7.	Thus on balance [the Appellant] should no longer be liable to recall but can be dealt with as an ordinary psychiatric patient”
The UT concluded that the FTT’s reasoning was not inadequate:
“17.	Against that background, it seems to me that the reasons given by the First-tier Tribunal fully explain why it reached the decision that it did.  It did not disagree with any of the assessments of the Appellant’s mental health or of the likelihood of him ceasing to engage with the mental health team or re-offending.  That is an important distinction between this case and Clatworthy.  Here, the First-tier Tribunal merely disagreed as to the conclusion to be drawn from the assessments when it came to considering whether the restriction order should cease to have effect.  That was the kind of judgment for which it is difficult to give reasons beyond those required to show that the tribunal has directed itself correctly as to the law and to show to what matters the tribunal has had regard.  I am satisfied that the reasons given by the First-tier Tribunal in those respects were adequate.  Indeed, if one looks just at the issue of whether it was necessary for the restriction order to continue in the light of the assessment of the Appellant’s current mental health, as opposed to whether it was possible to manage him in the community, the reasoning in the reports is no more detailed than that of the First-tier Tribunal and arguably less so save in the case of Dr Boast.”
17.	That conclusion was sufficient to dispose of the reasons challenge to the FTT’s decision.  However, the UT went on to consider SC and in the course of doing so said:
“23.	It is important to note that Munby J. also said that regard had to be had to the gravity of the index offence and, indeed, in assessing “the risk and likelihood of the patient reoffending, the degree of harm to which the public may be exposed if he reoffends”, it would appear that regard should also be had to the gravity of other past offences since section 41(1) makes it clear that a person’s antecedents are relevant to whether a restriction order should be imposed in the first place.

24. 	The gravity of past offences is partly relevant because, as Dr Boast acknowledged, the seriousness of past offending may be a guide to the possible seriousness of any future offending and because, as with any assessment of a risk of serious harm, one must have regard both to the likelihood of the harm occurring and to the seriousness of the harm that might occur if the risk materialises.  The more serious the harm that might occur if the risk materialises, the more one needs to guard against even a relatively low chance of its occurrence.

25.	The gravity of past offences is also relevant because, where an offence is serious enough to be punishable by a sentence of life imprisonment, Parliament has given a particularly powerful indication that a long-term view of risks must be taken.  Such a sentence does not usually have the effect that the offender remains in prison for the rest of his life but it does have the effect that after his release he remains on licence, and therefore subject to possible recall to prison, for the rest of his life.  It would be surprising if a different approach were required to be taken to the assessment of risk where a hospital order has been imposed on a person convicted of such a serious offence and the question for the court is whether a restriction order should also be imposed or the question for a tribunal is whether a restriction order should cease to have effect.

26. 	It seems to me that this provides an answer to Dr Boast’s concern that “[i]f…the standard is to have no evidence of the mental disorder for which a hospital order was made, then it would be only the very occasional patient in full prolonged remission who could achieve an absolute discharge”.  As I have mentioned, evidence of current mental disorder is not actually required in all cases.  Nonetheless, I would accept that the mere existence of current, or possible future, mental disorder is not enough to justify the continuation of a restriction order.  The First-tier Tribunal must also have regard to the seriousness of any risk of harm to others.

27. 	However, manslaughter may, and murder must, be punished by a sentence of life imprisonment.  It therefore cannot be regarded as surprising that a restriction order imposed in a case of manslaughter arising out of a deliberate killing – in this case, two deliberate killings – should remain in force for as long as that person continues to be subject to what the First-Tier Tribunal here called “vulnerabilities”, even if that has the effect that, in some cases, it will remain in force for life.  In this case, the First-tier Tribunal regarded the risk of harm to others to be sufficiently serious to justify the continuation of the restriction order.  Reading its decision as a whole against the background of the evidence before it and a proper understanding of the law, there can be no doubt as to why it reached that conclusion or that the decision was one it was entitled to reach.  Accordingly, I dismiss this appeal.”
Permission to appeal
18.	The Appellant asked the UT for permission to appeal to this Court.  The Appeal Grounds drafted by Miss Davidson, who had not appeared before either the FTT or the UT, contended, for the first time, that there had been a breach of Article 8 of the Convention.  Ground (c) said:
“(c)	the decision was heavily reliant upon R v Mental 
 	Health Review Tribunal and the Secretary of State for 
 	Health, ex parte SC [2005] MHLR 31, which was 
 	wrongly decided in respect of s.75(3) of the Mental 
 	Health Act 1983 because it is contrary to the European 
 	Convention on Human Rights for the burden of proof 
 	under the Act to be on a psychiatric patient;”
19.	The original reasons challenge had expanded into no less than eight grounds of appeal, including, as grounds (g) and (h):
“(g)	a conditionally discharged patient seeking an order 
 	under s.75(3) is not equivalent to and should not be 
 	compared to a lifer prisoner on licence;

(h) 	it was contrary unfair, unlawful, and contrary to the 
 	entire scheme of s.73 and s.75 of the Mental Health 
 	Act 1983 to

   	(i) 	find that a restriction order should remain in 
 		place essentially for life;

 	(ii)	direct that the decision under scrutiny should be 
   		placed before any future tribunal.”
20.	The FTT granted permission to appeal to the Court of Appeal, observing:
“I grant the Appellant permission to appeal from my decision dated 8th February 2010.  Grounds (c) and (g) of the Appeal Grounds raise important points of principle and the other grounds are related.  However, in relation to ground (c) it should not be thought that I consider it arguable that the burden of proof – if that is the right term in a substantially inquisitorial jurisdiction – was misplaced to the disadvantage of the Appellant in the present case.”
The Appellant’s Grounds
21.	In the Appellant’s Skeleton Argument the Grounds of Appeal were reformulated as follows:
“(a)	R v Mental Health Review Tribunal and the Secretary 
 	of State for Health, ex parte SC [2005] EWHC 17 
  	(Admin), [2005] MHLR 31 was wrongly decided in
 	respect of s.75(3) of the MHA because it is contrary to 
 	the European Convention on Human Rights for the 
 	burden of proof to be on the patient;

(b) 	the reasons provided by the First-tier tribunal were 
 	inadequate, and/or perverse, and/or irrational, and/or were 
 	not informed by the Convention principles of necessity 
 	and/or proportionality;

(c)   	the need for cogent reasons where professional opinion was 
 	rejected was not vitiated by the fact that the judgement on 
 	the need for continued liability to recall was a difficult one;

(d) 	a conditionally discharged patient seeking an order under 
 	s.75(3) cannot be compared to a lifer prisoner on licence;

(e) 	the finding that a restriction order should remain in place 
 	essentially for life was contrary to the entire scheme of s.73 
 	and s.75 of the MHA;

(f) 	there was no evidence that

  	(i) 	the risk of harm was sufficiently serious to justify the 
 		continuation of the conditions;

  	(ii) 	the expert opinion on risk only related to the short-
 		term;

(g) 	decisions of First-tier tribunals were not binding, and the 
 	direction that the decision under scrutiny should be placed 
 	before all future tribunals was unlawful and could result in 
 	the Appellant being subjected to the restriction order for life;

(h) 	failed to give sufficient weight to the clinical opinion;

(i)	failed to respond proportionately to the risk of deterioration 
 	and/or likely harm if the Appellant was no longer liable to 
 	recall.”
22.	Ground (i) was not pursued because it was recognised that it was covered by ground f (i), and during the course of her oral submissions Miss Davidson said that ground (c) was, in effect, subsumed within the reasons challenge under ground (b).  She confirmed that there was no separate challenge on the ground of perversity.  The FTT could rationally conclude that the Appellant should continue to be liable to recall, but it had to give cogent reasons for reaching that conclusion and for rejecting the unanimous view to the contrary expressed by the professional witnesses in their oral and written evidence before the FTT.
Discussion
23.	Ground (a) was founded on the submission that Munby J. erred in his formulation of the question to be asked by the FTT under section 75(3) – is it satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment – because he failed to apply the reasoning in R v Mental Health Review Tribunal, North and East London Region and the Secretary of State for Health ex parte H (2002) QB 1.
24.	In ex parte H the Court of Appeal held that the test in the form in which it was then enacted in section 72 of the Act, as applied by section 73 to restricted patients, was incompatible with Article 5(1) and (4) of the Convention because the patient would not be discharged unless the Tribunal was satisfied that he was not suffering from a mental condition which made it appropriate for him to be liable to be detained (paras.28 – 31).  In effect, the burden of proof was placed on the patient to persuade the Tribunal that he should not be detained, when it was for the authorities to justify his continued detention (para.24).  In response to the judgment in ex parte H sections 72 and 73 were amended so as to require the Tribunal to discharge the patient if they are not satisfied that he is suffering from a mental condition which makes it appropriate for him to be liable to be detained:  see paras.8 and 9 (above) for the relevant parts of the amended sections 72 and 73.
25.	As Mr Greatorex pointed out in his Skeleton Argument on behalf of the Second Respondent, the short answer to the Appellant’s submission based on ex parte H is that this is not an Article 5 case.  Article 5 will be engaged if the Appellant is recalled, and the procedures dealing with his recall will have to be Article 5 compliant, but Article 5 will not be engaged unless and until he is recalled.
26.	Miss Davidson accepted that Article 5 was not engaged, but submitted that the “burden of proof analogy” was applicable to the Appellant’s Article 8 rights.  The difficulty with that submission is that since Article 8 was not even referred to, much less relied upon, before the FTT and the UT, it is first necessary to ascertain the nature of the interference about which complaint is made.  Consideration can then be given to the question whether that particular interference is justified.
27.	For present purposes, I would accept that conditions imposed on a conditional discharge are capable of amounting to an interference with a patient’s private life for the purposes of Article 8.1 (family life is not in issue in this case).  Some conditions in a conditional discharge might be very burdensome.  However, in the present case the bone of contention was the Appellant’s liability to recall.  If liability to recall was not justified he would be absolutely discharged and the conditions would cease to have effect; but if liability to recall was justified the Appellant was not complaining about the conditions in his conditional discharge (see para.3 above).  As the FTT found, he was “well supported by the present arrangements”: see para.13 of its decision (para.13        
above).  Indeed it was the Appellant’s case that liability to recall was unnecessary because he could be relied upon to voluntarily comply with the requirements in the conditions.   
28.	Assuming that the Appellant’s liability to recall was an interference with his private life, was that interference in accordance with the law and necessary for the protection of the rights and freedoms of others under Article 8.2?  Unlike a patient who has been compulsorily detained under Part II of the Act and is seeking discharge under section 72, a patient such as the Appellant who is applying under section 75(3) for a direction that a restriction order should cease to have effect will have been made the subject of that order – rendering him liable to continued detention until absolute discharge under section 75 – by a competent court after a criminal trial: see section 41 of the Act (paras.6 and 7 above).  Where a patient is subject to such an order made by a Court it is neither unfair, nor in any way disproportionate or unnecessary to require him to satisfy the FTT that the order should cease to have effect:  i.e. that it is not appropriate for him to remain liable to be recalled.
29.	The importance of the “burden of proof” argument in this context should not be overstated.  As Lord Phillips MR said when giving the judgment of the Court  in ex parte H, this description of the point is a “useful shorthand” (para.24).  When considering applications under section 75(3) the FTT “is not… concerned with finding facts which are capable of exact demonstration, but rather with a process of judgment, evaluation and assessment”:  see R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ.1605, per Richards LJ giving the judgment of the Court at para.98.  In that case the Court was considering the standard, rather than the burden, of proof, but its observations in paragraph 99 are no less applicable to the latter: 
“Accordingly, as it seems to us, the standard of proof has a potential part to play in the decision-making process even in relation to issues that are the subject of judgment and evaluation.  In practice, we would expect the tribunal generally either to form the requisite judgment or not to form it, without needing to have specific regard to any standard of proof.  But the standard of proof provides a backdrop to the decision-making process and may have an important role in some cases.”
30.	I turn to the remaining grounds of appeal.  Although the point is put in a number of different ways, the essential complaint is the contention in ground (b) that the reasons provided by the FTT were inadequate.  Ground (i) is not pursued.  It is accepted that ground (c) is an aspect of ground (b).  Grounds (f) and (h) add nothing to the reasons challenge in ground (b).  It was for the FTT to decide what weight they should give to the conclusion of the professionally qualified witnesses that liability to recall was no longer necessary in the circumstances which they described, and which the FTT accepted.  The Appellant accepts that the FTT was entitled to disagree with the conclusion of the expert witnesses provided it gave cogent reasons for doing so.  The only question for the purposes of ground (b) is whether it did so.
31.	I have no doubt that for the reasons given by the UT the answer to that question is “yes”.  There was no dispute that the Appellant continued to suffer from mental disorder, had been recalled in 1997, and was still in need of psychiatric and other support.  The only issue was whether he should continue to be liable to recall, or whether he could be dealt with as an ordinary psychiatric patient.  Dr Boast concluded that “on balance” the Appellant could be dealt with as an ordinary psychiatric patient (see para.16 above).  The FTT was entitled to disagree with that conclusion for the reasons it gave in the second paragraph 15 of its decision.  Bearing in mind (a) the gravity of the index offences; (b) the circumstances leading to the Appellant’s recall in 1997; and (c) the fact that he was someone who still suffered from a mental disorder requiring psychiatric support (“a man with continuing vulnerabilities”), the fact that it could, at most, be said that he was “relatively unlikely to seriously offend again” (emphasis added) was not sufficient to persuade the FTT that there was no longer “a real risk to the public” with “an attendant risk” of recall.  The FTT’s decision is readily intelligible and, in my judgment, not in the least surprising.
32.	Nor is it surprising that the FTT did not expressly address the Convention principles of necessity or proportionality, since Article 8 was not referred to at the hearing.  Miss Davidson submitted that the FTT had merely concluded in paragraph 17 of its decision that the conditions in the Appellant’s conditional discharge were “desirable”, not that they were necessary (see para.13      above).  That submission plucks one word in the FTT’s decision out of context.  The decision must be read as a whole, and it must be remembered that the conditions were not in issue if liability to recall was to continue.  The question was whether liability to recall was no longer appropriate, and the FTT said in terms in paragraph 9 of its decision that it was not satisfied that it was no longer appropriate for the Appellant to remain liable to recall.  Agreeing with Dr Boast’s view that the Appellant’s continued “vulnerabilities” “may well entail the necessity of psychiatric intervention”, the FTT added “and, we would say, possible recall” (see the first paragraph of the FTT’s decision, para.13 above).
33.	 I can deal very briefly with the remaining grounds.  Ground (e) is based on a misunderstanding of the UT’s decision.  In her Skeleton Argument Miss Davidson submitted that the “the UT’s finding that the Appellant’s restriction order should remain in place essentially for life” was contrary to the entire scheme of sections 73 and 75 of the Act.  The UT did not make any such finding:  see paragraph 27 of its decision (para.17 above).  The UT merely observed that it was not surprising that a restriction order imposed on a patient who had been convicted of two deliberate killings should remain in force for so long as that person was suffering from a mental disorder and needing psychiatric and other support (what the FTT referred to as “vulnerabilities”) even if that had the effect that in some cases the restriction order would remain in force for life.  There is no legal error in that proposition.
34.	Ground (d) is also based on a misunderstanding of the UT’s decision, and a consideration of paragraph 27 of its decision in isolation.  The UT was not equating patients subject to conditional discharge with life sentence prisoners generally.  It was explaining why the gravity of the index offences was a relevant consideration (paras.23-25), and responding to Dr Boast’s concern that if the standard [for cessation of liability to recall] was to have no evidence of mental disorder, only the very occasional patient in full prolonged remission would be able to gain an absolute discharge (para.26).  It was in that context that the UT referred to the fact that manslaughter may, and murder must, be punished by a sentence of life imprisonment, which meant that the prisoner was subject to possible recall to prison for life, and compared that position, not with the position of any prisoner subject to a restriction order, but with the position of the Appellant who had been convicted of two deliberate killings.  The comparison was made, not for the purpose of equating a life sentence with a restriction order, but to answer Dr Boast’s concern that it might be very difficult for most patients ever to achieve an absolute discharge.  The UT pointed out, correctly, that a continuing mental disorder is not enough, of itself, to justify the continuation of a restriction order.  “The [FTT] must also have regard to the seriousness of any risk of harm to others.”  Hence the relevance of the index offence for the purposes of section 75(3), and the relevance of this Appellant’s index offences for the purpose of the FTT’s assessment of risk.
35.	Ground (g) is misconceived.  If the FTT’s decision had been quashed  because it was found to be defective on any of the other grounds, then the direction would have fallen with the decision.  If, on the other hand, the decision is a lawful decision, it would seem to be eminently sensible that it is placed before any future FTT considering the Appellant’s case.  While earlier FTT decisions are not binding, and any FTT considering the Appellant’s case in the future will be looking at the facts and circumstances as they exist at the time, there can be no doubt that earlier decisions are material considerations.  The weight to be given to this FTT’s decision will be a matter for any FTT which considers the Appellant’s case in the future.
Conclusions
36.	For these reasons I would dismiss this appeal.  This is a second appeal, and permission to appeal should not be granted for such appeals unless the UT or the Court of Appeal is satisfied that the appeal raises an important point of principle or practice, or there is some other compelling reason for this Court to consider the appeal.  It is not suggested that there was any other compelling reason in the present case.  If the UT does consider it appropriate to grant permission to appeal to the Court of Appeal because it is satisfied that one or more of the grounds of appeal raises an important point of principle or practice, it should carefully consider whether the grant of permission should be limited to that ground or grounds.   Although the UT considered that the other grounds were related to (reformulated) grounds (a) and (d), which raised important points of principle, on their face most of those other grounds added nothing of substance to the submission in ground (b): that the reasons provided by the FTT were inadequate.  That submission turned entirely on the particular facts of this case, and on those facts it had no real prospect of success for the reasons given in paragraph 17 of the UT’s decision.  Grounds (d) and (e) were based on a misunderstanding of an aspect of the UT’s reasoning which in any event was not essential to its decision; and ground (g) was simply misconceived.  Whether or not permission to appeal should have been granted on (reformulated) ground (a), I am firmly of the view that the UT should not have granted permission to appeal on the remaining grounds, none of which had any real prospect of success, and, with the exception of ground (d) which was plainly based on a misunderstanding of the UT’s own decision, did not raise any issue of principle.
37.	Particular care should be exercised before granting permission to appeal on a ground that was not raised below.  Ground (a) was not argued before either the FTT or the UT, so the UT did not know whether the Respondents, and in particular the Second Respondent, had an answer to it.  The UT commented on “the failure of the Respondents to engage with the Upper Tribunal in this appeal”, but the lack of engagement in this particular case is, perhaps, unsurprising given that, on the face of the grounds of appeal to the UT, this was a straightforward challenge to the adequacy of the reasoning in the FTT’s decision, which either would, or would not, speak for itself.  However, if exceptionally in view of the fact that a wholly new issue of principle was being raised after its decision, the UT had asked the Respondents whether they had any submissions to make as to whether permission to appeal should be granted on ground (a), it seems likely that the Second Respondent (the First Respondent remained neutral in the appeal to this Court) would have explained why the reasoning in ex parte H was not applicable (paras.25-28 above).  Had the UT been provided with that explanation it is most unlikely that permission to appeal would have been granted.  It is most unfortunate that a response to ground (a) was not elicited by the UT at an earlier stage, before much expense was incurred in considering the issue in this Court. 
Lord Justice Moses
38.	I agree.
Lord Justice Sedley 
39.	I agree with the entirety of the judgment of Lord Justice Sullivan. 
40.	I would add, in regard to the granting by the Upper Tribunal of permission to appeal to this court, that I am not convinced that even the principal point which Ms Davidson has argued, albeit with clarity and tenacity, should have secured permission either from the UT or from this court.  Assuming in the claimant’s favour that there is a formal onus on the state under art 8(2) to justify a conditional discharge which restricts an offender’s private life, that onus seems to me manifestly discharged by the simple facts of the conviction and its surrounding and sequent circumstances. No tribunal, knowing of these, could properly regard the claimant as starting with a clean sheet. 
41.	Where, as here, the facts are not capable of bringing the case home, it will not be common for permission to be given to bring a second appeal on a point of principle or practice, however theoretically important.