AC-2025-LON-001896 - [2025] EWHC 2231 (Admin)

As set out above, I have granted permission to apply for judicial review on grounds which allege that the Claimant’s ongoing detention is unlawful. I am satisfied that there is a serious issue to be tried as to whether the ongoing detention is unlawful.

To the extent that I can form any preliminary view (within the time limitations of the hearing before me, and without seeking to prejudice consideration at a substantive hearing) of the strength of the Claimant’s case on that issue, I will set out that view in this paragraph. There appears to me to be a strong case that the Defendant has not acted with appropriate diligence and expedition, at least after 29 July 2025, to put arrangements in place for releasing the Claimant. In that regard, I refer to my observations at paras 40-42 above. For the purposes of assessing whether to grant interim relief, it is appropriate that I focus primarily on that recent period, leading up to the present day, rather than on whether the Defendant has been acting lawfully during earlier times.

Although the Claimant can seek damages for unlawful detention, damages would not be an adequate remedy. That must be right as a matter of principle, but it is especially so in the circumstances of this case, given that there is some evidence that detention may be worsening, or at least impeding improvement in, the Claimant’s mental health.

Turning to consider the balance of convenience, I bear in mind that the Defendant accepts that the Claimant must be released. He has had the benefit of grants of conditional bail by the FTT for the past 15 weeks. What is preventing his release is the non-availability to him of suitable accommodation, i.e. accommodation that has been made available to him and which has been approved as suitable by his CJSW. If the Defendant provides s.95 accommodation to the Claimant now, then there will be some associated financial cost to the Defendant of doing so, but she will save the costs of continuing to detain the Claimant in prison. If such accommodation is in Scotland, then this would remove the need to seek agreement from a local authority in another part of the United Kingdom to supervise the Claimant on behalf of the CJSW. In the event that, at some later date, it is established that the Claimant has entitlement to accommodation provided by another public body (whether under the Care Act or otherwise), then he can be moved to that accommodation. Given that s.95 support is ‘residual’, a court order requiring the Defendant to provide s.95 accommodation for the Claimant should not prejudice any assessment by a local authority or ICB as to whether the Claimant has an entitlement to accommodation under either the Care Act or section 117 MHA 1983.

I am therefore satisfied that it is right to grant interim relief directed at ensuring that the Claimant is released from detention. I am not, however, prepared to make an order requiring that he be released immediately. In my view, this would not be in his interests, as he would need to be immediately placed in s.95 accommodation which might not be suitable for him, might not have been approved by his CJSW (thus putting the Claimant immediately in breach of the terms of his release on licence by the Scottish court), or might create a risk of interruption to his programme of ‘depot’ injections. Releasing the Claimant in such circumstances could also increase the level of risks he poses to other people.

I have therefore fashioned an interim order which I consider appropriate for ensuring that the Claimant will be released, but in a managed way which respects the licence conditions set by the Scottish court. I will invite Counsel to assist me in finessing the precise terms of the order, but the substance of it will be as follows:

It may be that, following the Claimant’s release, these proceedings can be transferred to the county court to continue as a claim for damages for unlawful detention. In order to ensure that the possible appropriateness of that step is focused upon by the parties, I will list a case management hearing in the week commencing 27 October 2025 when I will be available to hear it. That hearing will also provide an opportunity to consider any applications regarding disclosure of medical records or other documents which the Claimant has not yet received. The listing can be vacated if the parties are able to agree a set of directions.

I am grateful to all Counsel – including Ms Hampshire, who appeared for SNEE-ICB – for the considerable assistance they provided to me at the hearing.