Case No: T2/2010/2921
Neutral Citation Number: [2011] EWCA Civ 828
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SPECIAL IMMIGRATION APPEALS COMMISSION
THE IMMIGRATION APPEAL TRIBUNAL
SC92005
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/07/2011
Before :

THE RIGHT HONOURABLE LORD JUSTICE LAWS
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
and
THE RIGHT HONOURABLE LORD JUSTICE ETHERTON
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Between :

	B	Appellant	
	- and -		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Hugh Southey QC & Ms Kate Markus (instructed by Birnberg Peirce & Partners) for the Appellant
Mr Robin Tam QC & Mr Steven Gray (instructed by Treasury Solicitors) for the Respondent

Hearing dates: 6th July 2011
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Judgment
Lord Justice Longmore: 
1.	This is an appeal against a sentence of 4 months imprisonment imposed on the appellant by the Special Immigration Appeals Commission (SIAC) for failure to comply with an order that he reveal his true identity.  On 30th July 2008 SIAC decided that a person whom they called B constituted a high level risk to the United Kingdom.  He is not a UK citizen and is currently subject to stringent bail conditions.  The Secretary of State wishes to deport him to Algeria since she believes and B asserts that he is an Algerian citizen.  B is not B’s real name but B has refused to disclose his real identity.  While his identity is unknown, Algeria declines to receive him in Algeria and the Secretary of State cannot therefore deport him.
2.	The hearing before SIAC began on 17th July 2006 when it was discovered that B was using a false name.  In order that the hearing might come to a conclusion SIAC on 12th January 2007 ordered B to provide the following information:-
1)	His full name;
2)	His place of birth and birth certificate, or any other documentation in support;
3)	The full names of both parents and their current addresses;
4)	All addresses at which he lived in Algeria.
He was also ordered to provide:-
5)	Written consent for a non-invasive sample to be taken for the purposes of DNA testing.
B did provide a DNA sample but failed to comply with the first 4 directions.  In the light of that refusal, the Secretary of State applied for a new order with a penal notice in the event of non-compliance.
3.	A further hearing was convened on 19th July 2007 attended by B’s solicitors and Dr Quinton Deeley a consultant psychiatric instructed on B’s behalf.  Mr Deeley had written a report stating that B suffered from a psychotic condition and that service of an order with a penal notice could affect B’s mental health, increase his anxiety and give rise to a need for medical treatment.  It could also cause an attempt to self-harm and exacerbate his psychotic condition.  In the light of this evidence, Mr Southey on B’s behalf submitted that no penal order should be made but SIAC determined that, on the whole of the evidence before it, the balance fell to be struck in favour of making a penal order and issued the following penal notice:-
“By order dated 19th July 2007 you were directed to provide the following information:-
1.	Your full name.
2.	Your place of birth and birth certificate, or any other documentation supporting this.
3.	The full names of both parents and their current addresses.
4.	All addresses at which you lived in Algeria.
You must within 14 days of service of this order upon you comply with 1-4.  If you, [B] disobey this order you may be held in contempt of court and may be imprisoned, fined or have your assets seized.  Any other person who knows of this order and does anything which helps or permits the appellant to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized.”
4.	On 15th August 2007 B’s solicitors wrote to the Treasury Solicitor saying that B did not feel able to provide any more information to the Treasury Solicitor or to SIAC.
5.	B had provided a fingerprint sample which was on 3rd December 2007 despatched to Interpol Algeria who on 28th February 2008 confirmed that the fingerprints matched the ones they had on record for a person purporting to be MB, the son of MB and ZA born on 2nd March 1971.  In the light of that, the British Embassy in Algiers asked the Ministry of Foreign Affairs in Algiers for assurances that on return B would be treated in accordance with accepted international human rights standards.  On 17th June 2008 the Algerian Ministry of Justice responded that B was not the person identified as MB born on 2nd March 1971, the son of MB and ZA.  The Ministry stated that MB had been interviewed and that he had said he had lost his passport in 1995.  Algeria thus refuses to recognise B as Algerian in the absence of any evidence of his identity and B, by refusing to disclose his identity, appears to have successfully frustrated any attempt by Secretary of State to deport B to Algeria or for that matter anywhere else.
6.	In these circumstances, once SIAC had on 30th July 2008 decided that B was indeed a continuing high risk to the security of the United Kingdom, the Secretary of State on 18th August 2009 applied for an order that B be committed to prison for contempt in deliberately and contumeliously disobeying SIAC’s order of 19th July 2007.  That application was adjourned on 21st December 2009 in the hope that (in order to allay B’s stated concern about risks to his family in Algeria) if the Secretary of State gave undertakings that she would not reveal to any unauthorised person the contents of any compliance with SIAC’s order, B would then provide the required information but negotiations to that effect came to nothing.  On 21st November 2010 SIAC decided that B had deliberately and contumeliously disobeyed its order and imposed a prison sentence of 4 months, but suspended its order pending an appeal.  B has now appealed.
7.	The grounds of appeal are
1)	committal to prison would violate B’s Article 3 rights because he would refuse to take prescribed medication for his mental health problems and he would therefore be liable to suffer a relapse into his paranoid psychotic condition;
2)	B’s Article 8 rights would also be violated by reason of the probability of his relapse;
3)	there has been unreasonable delay in bringing the contempt proceedings;
4)	4 months was not only excessive but there should have been no sentence of imprisonment at all or indeed any other sentence.
Medical Evidence 
8.	There was a large amount of evidence about B’s mental health problems which were on any view considerable.  The Commission set the evidence out with care culminating with the joint experts’ statement of Dr Payne on behalf of the Secretary for State and Dr Deeley on behalf of B as follows:-
“46.  … This took the form of a schedule of matters of agreement and disagreement concerning the appellant in relation to the following questions:-
(a)	diagnosis of the appellant’s mental health;
(b)	whether his mental health is causative of his unwillingness to disclose his identity; and
(c)	whether re-imprisoning the appellant in the near future would be detrimental to his mental health, and if so what the likely effect would be.  
47. The statement answered the questions as follows:-
(a) Dr Payne diagnosed [the appellant] with psychological symptoms, which have fluctuated in severity and, which in his opinion, are probably most usefully classified as an adjustment disorder (ICD-10 F42.22 mixed anxiety and depressive reaction).  Dr Deeley has diagnosed [the appellant] with a depressive illness associated with psychotic symptoms.  This has been formally classified as ICD-10 F33.3, recurrent depressive episodes, current episode severe with psychotic symptoms.  In addition, [the appellant] has psychological and body symptoms of anxiety.
(b) Dr Payne believes that [the appellant’s] mental health is not causative of his unwillingness to disclose his identity.  Dr Deeley believes that [the appellant’s] delusional system reinforces his unwillingness to disclose his identity.  However, his decision not to disclose his identity is based on an understandable fear that his family may be mistreated or tortured should he do so, and that he may be deported to Algeria and subjected to mistreatment and torture.  These beliefs and motivations are likely to persist even if his mental health problems were met.
(c) Dr Payne believes that reimprisoning [the appellant] would lead him to repeat his behaviours when imprisoned, namely being uncooperative with prison authorities and mental health in reach teams; complaining of psychotic symptoms; raising anxieties about his physical health, food and fluid intake, and suicide risk, would result in readmission to a psychiatric facility.  Dr Deeley also believes that this pattern of presentation would recur, although attributed to the exacerbation of depressive and psychotic symptoms under conditions of stress and perceived intensification of persecution rather than malingering or exaggeration of symptoms as argued by Dr Payne.”
9.	SIAC decided that for the purpose of determining the appropriate penalty it was unnecessary to require either Dr Payne or Dr Deeley to give oral evidence or for it to choose between their evidence, since there was enough that was common ground.  In particular para 3 of the joint statement made it clear there was a risk that B would refuse food and refuse to continue medication if he were sent to prison, resulting in re-admission to a psychiatric facility.  They said expressly, however, in para 63 that considerable weight had to be given to Dr Deeley since he had recently examined B and had made himself available to give oral evidence, if required.
10.	Mr Southey QC on B’s behalf complains that despite that common ground and the notional deference to Dr Deeley, SIAC followed the view of Dr Thompson, the doctor currently treating B, to the effect that B had previously taken medication in custody and would probably continue to do so.  He submitted that SIAC had departed from the common ground charted by Dr Deeley and Dr Payne and should not have done so.  There is much force in that submission, especially since it has now emerged that by “custody” Dr Thompson meant while B was in hospital at Broadmoor, not in a general prison.
11.	Thus far, I am with Mr Southey;  SIAC can, I think, be legitimately criticised for concluding as they appear to have done in para 64 of their determination that they could be confident that B would not suffer a relapse into paranoid psychosis if he is committed to prison.
12.	But that is, of course, not the end of the matter.  As in any appeal against a sentence of imprisonment, the question for this court is whether the sentence imposed was excessive or, indeed, to use the almost invariable language of the Criminal Division of this court “manifestly excessive” since there is, of course, a wide discretion given to any sentencing tribunal.
13.	No doubt if a sentence of imprisonment caused the court to be acting in breach of Article 3 or Article 8 of the Convention, that sentence would be excessive and, indeed, manifestly so.  That is why Mr Southey’s oral submissions concentrated heavily on these Articles.  SIAC themselves in the context of Article 3 also drew attention (in para 66) to the provision of the Mental Health Act 1983 requiring the Secretary of State to ensure that B receive medical treatment in a hospital if he is in urgent need of it.
Article 3
14.	It would, however, be on the face of it surprising if an otherwise justified sentence of imprisonment, imposed by a court of law with all the protections of Article 6 being complied with, were (even in a case where the appellant has mental health problems) to breach Article 3 of the Convention.  That Article provides:-
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
15.	It has been said that this Article imposes a comparatively high threshold, see e.g. Bensaid v UK [2001] 33 EHRR 10 para 40.  Its impact has also been recently considered by this court’s Criminal Division in R v Qazi and Hussain [2010] EWCA Crim 2579 decided after SIAC had heard argument but before it gave judgment in this case.  The court in that case received evidence from the Secretary of State for Justice accepting that a sentenced prisoner is entitled to the same level of access to medical services as the general population and stating that there were arrangements in place to ensure such access is provided.  In its judgment delivered by Thomas LJ, the court said that generally those matters should not concern the sentencing court.  It continued in para 35:-
“iii) It is only in circumstances where the very fact of imprisonment itself might expose the individual to a real risk of an Article 3 breach that the court will be called upon to enquire into whether sentencing a person to custody will mean a breach of Article 3.  That is a quite different circumstance from the kind of enquiry carried out in Hetherington as to whether facilities in a particular prison were adequate.  It is an enquiry that can only arise where there is proper medical evidence before a court that any sentence of imprisonment ipso facto would cause a breach of Article 3.  We are doubtful if circumstances will ever arise in which such a submission could be made, but if they should ever arise, it would be an exceptionally rare event.
…
v) Once a sentence of imprisonment has been imposed, unless it is to be contended on appeal that the judge should not have imposed a sentence of imprisonment because imprisonment anywhere would ipso facto cause a breach of Article 3, the relevance of an appellant’s medical condition relates solely to the assessment of the overall length of the sentence …”
16.	The evidence in this case did not satisfy this stringent test.  There is a risk of relapse if B does not continue his medication in prison and that risk sadly arises from B’s mental health problems.  But there is no evidence that imprisonment will ipso facto cause inhuman or degrading treatment within Article 3.   Even if SIAC had (or ought to have) been convinced that B would inevitably refuse his medication and would relapse into his psychotic condition, that would not cause a prison sentence to be in breach of Article 3, in view of the arrangements in place whereby he can be transferred to hospital.
17.	Indeed it is difficult to imagine how Mr Southey’s submission would not apply to any potential prisoner with mental health problems in respect of whom there is a serious risk of relapse into a psychotic condition if he does not continue his treatment.  Mr Southey submitted that B’s case was special because he had taken medication (and thus improved) while subject to a control order or subject to bail conditions and had, therefore, been a person for whose care the state had already accepted responsibility and who had benefited from such care.  But it would be odd if a persistent offender or someone who posed a continuing long-term danger to the state but had been on bail could rely on Article 3 when a first time offender could not.
Article 8
18.	If B cannot rely on Article 3, he cannot rely on Article 8.  No doubt any sentence of imprisonment is a severe interference with any person’s private life.  But a sentence imposed in accordance with Article 6 must invariably be a proportionate interference unless it can be said to be inhuman or degrading within Article 3.  That is not this case.  SIAC pointed out in para 70 that the appellant has it in his own power to secure his early release in any event if he purges his contempt.
Delay
19.	SIAC had the question of delay well in mind and rightly said in para 72 of the determination that the history
“discloses a determination on the part of all concerned, including the appellant’s advisers, to ensure that the present proceedings have not been reached prematurely and without seeking other means of compliance, short of committal (such as by the provision of the respondent’s undertaking).”
Such delay as there has been has been caused by B’s continuing violation of SIAC’s order not the vagaries of judicial process.
Excessive length?
20.	This is not arguable.  Many people might think that a sentence of 4 months for a deliberate and contumelious contempt, frustrating the Secretary of State’s intention to deport B and causing SIAC great difficulty in its final disposition of the appeal before it, is a sentence which is comparatively merciful.
Disposition
21.	I would dismiss this appeal.
Lord Justice Etherton:
22.	I agree with Longmore LJ that, in evaluating the expert psychiatric evidence, SIAC wrongly rejected the joint evidence of Dr Deeley and Dr Payne that, if B was imprisoned, he would be likely to be uncooperative with the prison authorities and mental health teams, and so would cease taking his medication, resulting in his readmission to a psychiatric facility.  I respectfully disagree, however, that it is possible, in those circumstances, to uphold on this appeal SIAC’s order committing B to prison for 4 months for contempt on the ground that it was not manifestly excessive.
23.	 B has a well documented long history of mental illness.  He was, at the time of the committal proceedings, and still is, a highly vulnerable individual.  The precise nature of his mental illness, its seriousness, and its causative relationship (if any) both to his failure to comply with SIAC’s order of 12 January 2007 and the likelihood of a worsening of his mental state if he was imprisoned were matters of conflicting expert evidence before SIAC at its hearing on 26 November 2010.  That evidence was in written reports.  
24.	The evidence of Dr Deeley, who was appointed on B’s behalf, was that B was suffering from a depressive illness associated with psychotic symptoms -“formally classified as ICD-10 F33.3, recurrent depressive episodes, current episode severe with psychotic symptoms”.  The evidence of Dr Thompson, who was the consultant psychiatrist then responsible for B’s care at St Pancras Hospital, was that B was suffering from, among other things, paranoid psychosis then in remission.  Dr Payne, on the other hand, diagnosed B merely with psychological symptoms, fluctuating in severity, and most usefully classified as an adjustment disorder (ICD10 F43.22 mixed anxiety and depressive reaction). 
25.	Dr Deeley considered that B’s delusional system reinforced his unwillingness to disclose his identity.  Dr Payne, on the other hand, believed that B’s mental health was not causative of his unwillingness to disclose his identity.
26.	Critically, although for different reasons, Dr Payne and Dr Deeley both considered that imprisoning B would lead him to repeat his previous behaviour when in prison, which included refusal of medication.  It was common ground between them that, in that eventuality, there would be an exacerbation of B’s condition, leading to his need for readmission to a psychiatric facility.  
27.	Instead of accepting the evidence of Dr Payne that B’s delusional system reinforced his unwillingness to disclose his identity and the evidence of Dr Payne and Dr Deeley as to the consequences of imprisonment of B, SIAC concluded ([64] and [70]) that there was no real risk that imprisonment would lead to a relapse into paranoid psychosis, and that it was likely that B, if imprisoned, would continue to benefit from his medication regime, so as to retain a realisation of why he was imprisoned and (importantly) how he might extricate himself.  In reaching those conclusions, SIAC said that it was relying on the evidence of Dr Thompson to that effect.
28.	Not only was there no cross-examination of any of the medical experts, but SIAC did not accede to the offer, on behalf of B, for Dr Deeley to give oral evidence and be cross-examined.  SIAC’s judgment offers no explanation, or no clear explanation, justifying the acceptance of the evidence of Dr Thompson in preference to that of Dr Deeley.  In my judgment, without some sound explanation or obvious grounds for doing so, it was not open to SIAC to accept as correct selective parts of the expert evidence which were less favourable to B’s defence to the committal application than others.
29.	Furthermore, it is now clear that SIAC misunderstood the relevant part of Dr Thompson’s evidence.  So far as relevant, that was as follows:
“If [B] were to be re-detained the consequent increased restrictions on his freedom of movement and communication would certainly cause him distress and discomfort.  However, it is to be noted that his core mental illness (psychosis) has been manifest both within and without prison settings in the past and he has been able to accept and benefit from treatment for it while in custody.”
30.	It is clear from a letter from Dr Thompson dated 27 June 2011 that Dr Thompson’s reference to “custody” at the end of that quoted passage was not a reference to custody in prison, but to detention as a mental health patient.  In the letter Dr Thompson clearly states that it is his opinion that imprisonment in the future would be likely to lead B to become non-compliant with prescribed medication.
31.	In those circumstances SIAC’s judgment that it was appropriate to make an order for imprisonment was fatally flawed.  SIAC based its judgment on a critical piece of assumed evidence, which did not exist.  Rather, the material evidence, which SIAC ought to have accepted in the absence of any cogent reason not to do so, was that of Dr Deeley that:  “It remains very likely that [B] would construe re-imprisonment as an escalation of his perceived persecution, which would in turn be associated with a major relapse …” and would result in the need for in-patient psychiatric care.  For the same reason, SIAC proceeded on the basis of a false premise (namely that, because B would continue to benefit from his medication regime, he would appreciate why he was in prison and how he might extricate himself) in making the assumption that there was a realistic possibility that imprisonment would induce B to comply with SIAC’s order of 12 January 2007. 
32.	It follows, in my judgment, that, irrespective of whether or not imprisonment would be a breach of B’s rights under Article 3 or Article 8 of the Convention, SIAC’s order for committal must be set aside.  I do not accept that the approach of the Court on this appeal should be that of the Court of Appeal Criminal Division on an appeal against sentence.  Unless it is possible to say that SIAC would have reached the same conclusion even if it had taken a correct view of the evidence, that is to say, if it had proceeded on the basis of accepting all the medical evidence most favourable to B (in the absence of any sound reason to do otherwise), then, in accordance with ordinary principles of civil law, SIAC’s judgment cannot stand.  It is plainly not possible to say SIAC would have reached the same conclusion.   
33.	This Court has power under CPR 52.10 to form its own view of the appropriate order to make on the committal application and to affirm or vary SIAC’s order accordingly.  I consider that it would be wrong to do so for the following reasons.  First, I am very doubtful that it would be lawful on the particular facts of this case (including the unlikelihood, on the evidence, that B would comply with SIAC’s order of 12 January 2007 because of his mental condition) to commit B to prison for any significant period if it is “very likely” that, as a result of his mental illness, his paranoid psychotic condition will deteriorate to the point where he will need in-patient psychiatric care.  Secondly, if we were to form our own view of the appropriate order on the committal application, that course would deprive SIAC of the opportunity to explain and justify, if it wished to do so, why it would be appropriate not to proceed on the basis of all the medical evidence most favourable to B.  Thirdly, if, as I consider to be the case, the discretion as to what order to make on the committal application arises for fresh exercise, that exercise must be conducted on the basis of the current evidence as to B’s mental state.  In that connection, we have been shown medical evidence that B has recently experienced an increase in the intensity of his depressive symptoms and paranoid delusions, and that he has ceased taking his medication, resulting in a further deterioration in his condition, including suicidal thoughts.  He has been admitted as an in-patient in order to receive more intensive care and support and to allow professionals to monitor his treatment.  SIAC would be in a far better position than this Court to evaluate that evidence, possibly supplemented by oral evidence and cross-examination.
34.	In the circumstances, I would allow this appeal, set aside the order for committal, and, pursuant to CPR 52.10(2)(b), remit the matter to SIAC for re-consideration.    
Lord Justice Laws:
35.	I have had the advantage of reading the judgments of Longmore and Etherton LJJ in draft.  I agree, though not without some misgiving, with Longmore LJ’s conclusion at paragraph 11 that “SIAC can… be legitimately criticised for concluding [paragraph 64 of the determination] that they could be confident that B would not suffer a relapse into paranoid psychosis if he is committed to prison”.
36.	I am also, however, in agreement with Longmore LJ that the appeal should be dismissed.  This is not a judicial review case.  We are exercising the appellate jurisdiction conferred in cases of contempt of court by s.13 of the Administration of Justice Act 1960.  The court’s powers are wide; it may “reverse or vary the order or decision of the court below, and make such other order as may be just”.  It seems to me that we are enjoined to consider the outcome.
37.	As regards that, this was a grave and deliberate contempt of court.  Even on the footing that the appellant is at risk of a relapse into paranoid psychosis, I am wholly unpersuaded that there is the least possibility of any violation of ECHR Article 3 or 8.  This was a lenient sentence.