R (Juncal) v SSHD [2007] EWHC 3024 (Admin)
(1) The common law principle of legality meant that subordinate legislation could not impose arbitary detention without the authorisation of the enabling act. However, the Order in Council conferring a mandatory hospital order on those unfit to stand trial (without any investigation of the facts of the alleged offence) did not impose arbitrary detention: on the facts, medical evidence had been considered, and, in general, the court could postpone consideration of fitness to stand trial until after the prosecution case if it was likely that there was no case to answer. (2) The detention occured before the coming into force of the HRA 1998 so any ECHR claim would necessarily fail.
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