Scrutiny of judicial safeguards for detention: Cameron v Secretary of State for Justice and Anor [2025] EWCA Civ 1574
23 January 2026
INTRODUCTION
The crux of the issue in this appeal is both narrow and, to some degree, exceptionally broad. It is narrow in that the central issue before the Court of Appeal was “whether an application made under s.75(2) of the Mental Health Act 1983 by a mental health patient to the First-tier Tribunal while subject to a conditional discharge is extinguished by the recall to hospital of that patient by the Secretary of State for Justice under s42(3) of the Act” [1]; a pithy, glamorous summary.
However, the appeal has simultaneously broad implications; the Court considered whether certain mechanisms of judicial oversight were effective as judicial safeguards and in providing speedy consideration of a person’s deprivation of liberty as required by Article 5(4) ECHR. In what was ultimately an academic discussion which was somewhat removed from the generative facts, the Court of Appeal examined whether there was indeed a “lacuna” in the FtT’s oversight of offenders who have been conditionally discharged with a restriction order.
Judgment was handed down on 4 December 2025 by Lord Justice Bean, with Lord Justice Baker and Lord Justice Males concurring.
FACTS AND PROCEDURAL HISTORY
At [27], the Court observed that the appeal “is academic insofar as it is capable of having any practical effect on the Appellant’s position”. Nonetheless, the facts provide a helpful framework for understanding the background to the appeal and the somewhat knotty nexus of statutory provisions which generate it, and the procedural history of the case is central to the appeal.
On 16 November 2016, the Appellant, who had been previously diagnosed with paranoid schizophrenia, was made subject to a Hospital Order pursuant to s.37 of the Mental Health Act 1983 (“MHA”). The Court also imposed a Restriction Order under s.41 MHA, rendering the Appellant liable to be detained or recalled until absolutely discharged.
The Appellant was conditionally discharged to a care home in October 2021, under s.42(2) MHA. Two years later, in October 2023, the Appellant lodged an application with the FtT for absolute discharge under s.75(2) MHA (“the s.75(2) Application”), which states:
75 Applications and references concerning conditionally discharged restricted patients.
[…]
(2) Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to the appropriate tribunal—
(a) in the period between the expiration of 12 months and the expiration of two years beginning with the date on which he was conditionally discharged; and
(b) in any subsequent period of two years.
(3) Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the tribunal may—
[…]
(b) direct that the restriction order, limitation direction or restriction direction to which he is subject shall cease to have effect;
and if the tribunal gives a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order, hospital direction or transfer direction.
However, on 1 March 2024, the Appellant was recalled to hospital under s.42(3) MHA. At the point of recall, the Appellant’s application for absolute discharge remained outstanding.
S.75(1) MHA mandated that the Respondent refer the Appellant’s case to the FtT within one month of his recall to hospital:
75 Applications and references concerning conditionally discharged restricted patients.
(1) Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 above and is subsequently recalled to hospital—
(a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to the appropriate tribunal; and
[…].
The reference was made (“the s.75(1) Referral”) and was initially directed to be listed together with the Appellant’s s.75(2) Application. However, on 10 April 2024, FtT Judge Chamberlain held that the FtT’s jurisdiction to hear the s.75(2) Application had lapsed when the Appellant was recalled to hospital and accordingly, struck the Application out. This strike-out decision was affirmed by Upper Tribunal. The Appellant appealed against this decision to the Court of Appeal.
Separately, the s.75(1) Referral was heard on 25 July 2024 and the Appellant’s submission that he could be discharged was rejected.
PREVIOUS DECISIONS
Chamberlain J in the FtT held that it had no ongoing jurisdiction to consider the s.75(2) Application following the Appellant’s change in status post-recall. It observed that the s.75(1) Referral provided sufficient oversight over the Appellant’s detention, negating the need for further judicial scrutiny.
On appeal, the UT affirmed the FtT’s jurisdictional conclusion, finding that although a patient’s change of status does not necessarily deprive the FtT of jurisdiction, it may do so in certain scenarios, provided that the patient is suitably protected by the exercise of judicial oversight. In the Appellant’s case, the UT determined that the latter scenario applied as the Appellant’s Article 5(4) protection, judicial review and the legislative provisions mandating s.75(1) referral within one month of a patient’s recall all collectively ensured that the Appellant had access to effective judicial oversight.
This reasoning echoes that of the Court of Appeal in R (Rayner) v Secretary of State of Justice [2008] EWCA Civ 176, by which the UT was bound. In Rayner, the claimant submitted that the scheme involving sections 70 and 75 MHA was incompatible with Article 5(4) ECHR; concern was raised about the provision that a recalled patient must wait six months after his return to hospital before applying to the Tribunal (s.70(a)), whereas the Respondent has up to a month to make a referral. Keene LJ held that a referral under s.75(1) should ordinarily be made “within days, not weeks of the return of the patient to hospital” [24]. Although s.75 “might now not be regarded as sufficient” to protect Article 5(4) rights standing alone,
“the combination of that statutory mechanism [the obligation to refer], the right of the patient to enforce the Secretary of State’s statutory duty […] by way of judicial review, and the right of the patient to challenge the lawfulness of his detention directly in the courts on its substantive merits by judicial review and/or habeas corpus does suffice to comply with article 5(4)” [46], Rayner.
However, in his decision refusing permission to appeal, UT Judge Jacobs offered striking obiter remarks that probe the efficacy of judicial review as a means of judicial safeguard in cases of this kind:
“If I had had to consider the position without the benefit of [Rayner],I would have hesitated (to say the least) before accepting that judicial review provided effective protection for someone in AC’s position” [7].
Nevertheless, UT Judge Jacobs concluded:
“As the Court of Appeal is also bound by Rayner unless it falls within the limited exceptions, I consider it preferable for the Court to decide whether to take on his case.”
Upon renewal by the Appellant, permission to appeal was granted by Dingemans LJ in the Court of Appeal, partly on the basis that the potential “lacuna in the FtT’s oversight” warranted consideration, on one ground:
“The judge erred in finding that effective judicial oversight as required by Article 5 ECHR could be achieved without recourse to the FtT in the circumstances of the Appellant’s case”.
DECISION
Firstly, the Court considered the “jurisdiction question” from the perspective of someone in Mr. Cameron’s position; for him there was no lacuna in judicial oversight, as he did obtain a prompt FtT hearing. In doing so, they addressed the question of whether a s.75(2) application should be struck out or maintained if the applicant is recalled and a s.75(1) referral is made.
The Court observed that recall cases are typically prioritised by the FtT and heard promptly due to both the “striking” feature of the MHA requiring the Respondent to refer “within one month” and the requirement outlined in Rayner that such referrals should in practice be made “within a few days”. Therefore, any outstanding s.75(2) application should be “subsumed” into a recall hearing, as there is no “practical advantage” to the patient to have their application retained; there is no suggestion that a s.75(2) application should be heard before a s.75(1) reference, and so all that would be achieved by retaining the application is that the two would be heard together, with the former adding nothing to the latter. The Court further noted that even if a maintained s.75(2) application were heard, the FtT would consider the most up-to-date evidence available, which would undoubtedly include that which led to the recall decision anyway. Absent an “irrational” recall decision, it is “highly unlikely” that a patient who had been recalled would succeed in obtaining absolute discharge [33].
Secondly, the Court addressed the potential lacuna in judicial oversight which arises in the hypothetical scenario wherein a patient is recalled prior to determination of their s.75(2) application and then discharged before their s.75(1)(a) referral is heard, effectively preventing the Tribunal from ever reviewing the application or detention The Court referenced Judge Jacobs’ observation in DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice [2022] UKUT 166 (AAC), (which was distinguished in the decision under appeal):
“It is possible to construct scenarios in which a series of conditional discharges and recalls would operate to prevent the tribunal ever having jurisdiction to hear an application. That would remove any guarantee of judicial oversight. These scenarios are not fanciful. They are realistic ones for a patient with a fluctuating condition”.
However, the Court ultimately reiterated the sentiment in Rayner and concluded that even for a patient who has frequent status changes, the legislative provisions which govern the recall of a conditionally discharged patient “provide effective judicial oversight” [37]. In the “hypothetical” circumstances where the FtT has no retained jurisdiction, “Rayner confirms that the availability of judicial review is an adequate fallback”. On these bases, the appeal was dismissed.
COMMENT
The starting point for the Appellant’s proposed construction of the MHA (which formed his core submission) isthat Parliament intended the FtT to be the primary judicial safeguard for a detained mental health patient’s liberty to comply with Article 5 ECHR. Given this legislative intention, the MHA should be construed so as to ensure that there is no lacuna in the FtT’s oversight, since an application for habeas corpus or judicial review cannot be sufficient to mitigate any such lacuna. Finding support in Judge Jacobs’obiter comments above, the Appellant submitted that “the FtT is a more effective remedy and judicial safeguard than judicial review and habeas corpus” [23].
It is perhaps unsurprising that the Court did not take this opportunity to comment on the efficacy of judicial review and habeas corpus as Article 5 ECHR judicial safeguards, instead pinning their decision squarely on Rayner, by which they were bound. For now, despite Judge Jacobs’ obiter remarks, the ability of judicial review to provide an effective means of judicial oversight in circumstances where expeditious review is required remains unchallenged.
Josephine Lunnon is a pupil barrister at 1 Crown Office Row.
