Miah, R (on the application of) v Secretary of State for Home Department

MR JUSTICE COLLINS: This case concerns the effect of a transfer from prison to a mental hospital in accordance with section 47 of the Mental Health Act 1983 upon that prison sentence. More particularly, it concerns the effect upon the possibility of imposing licence conditions and recall to prison for breach of such conditions following release from prison.

The salient facts can be shortly stated and there is no dispute about them. The claimant was convicted in the Crown Court at Sheffield of robbery, and was sentenced to 3 years' imprisonment on 9th May 2001. He was also required to serve 176 days consecutively in respect of a previous sentence of theft.

Since he was sentenced to a period of less than 4 years he was a short-term prisoner, and was therefore entitled to be released from prison after he had served half of his sentence. He would then be on licence until three quarters of the sentence had been served, whereupon he would be free absolutely.

On 31st January 2003 he was released on licence, but on 26th February his licence was revoked and he was returned to prison the following day. The effect of that was that he would fall to be released after he had served three quarters of his sentence, but he would be on licence until the conclusion of that sentence. This meant that on 11th March 2004 he was due for release on licence, having served three quarters of his sentence, but the sentence would expire, and thus any licence should expire on 30th October 2004.

In fact what happened was that on 9th March, that is to say two days before he would otherwise have been due for release, having served three quarters of his sentence, the defendant made a transfer direction pursuant to section 47 of the Mental Health Act transferring the claimant from prison to Rampton Hospital.

On 20th March there was an incident involving the claimant and some other patients which was said to amount to some sort of hostage taking. He was, in fact, never prosecuted for that, but since he was notionally on licence, in the sense that it was said that from 11th March 2004 he would have been on licence had he not been transferred to Rampton, the incident was treated as a breach of his licence conditions. The result was that in due course, when he was released from Rampton following a decision of the Mental Health Review Tribunal, he was immediately arrested and returned to prison.

The relevant dates are that on 4th May he was formally shown the licence. On the 5th, the following day, it was revoked as a result of the incident on 20th March, and on the 6th, when the Mental Health Review Tribunal ordered his discharge from hospital, since he was not suffering from any condition which would have justified his remaining in hospital, he was, as I have said, immediately arrested and returned to prison.

This gave rise to a letter before claim the following day, and eventually, on 8th June, permission for this judicial review claim was granted by Harrison J. The claim, as I have said, is essentially that there was no power to recall him to prison, and therefore he is now in prison unlawfully.

I must, therefore, look first at the relevant statutory provisions. I have already described the effect of the provisions in the Criminal Justice Act so far as they relate to licence. I should add, because it becomes relevant when I look at the overall arguments, that in the case of long-term prisoners, that is to say those sentenced to a period of 4 years or more, they are eligible for release on parole from halfway through their sentence, but they must be released on licence at the two thirds point. Thus it is obvious that in their case there can be a substantial period after the two thirds time until the three quarters when normally a licence would expire if there was a long sentence of imprisonment.

As is no doubt well known, the Mental Health Act 1983 contains provisions whereby the court, instead of sentencing to any other form of sentence can, if persuaded that the conditions are appropriate, order that a person convicted of a criminal offence should go to a mental hospital and can, if persuaded that that is necessary in the interests of the public, include a restriction order.

The power to order hospital admission is contained in section 37 of the Act, and it is to be noted that by virtue of section 37(8) it is provided:

Section 40 which has the side note, "Effect of hospital orders, guardianship orders and interim hospital orders", provides that a hospital order shall be sufficient authority for the individual to be conveyed to the hospital and to be detained in the hospital.

The effect of that is that, broadly speaking, he falls into the same regime as would be applicable to a patient committed to a hospital under section 3 of the Act. The criteria for that are the general criteria, namely that he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital, and in the case of psychopathic disorder or mental impairment such treatment is likely to alleviate or prevent a deterioration of his condition, and 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, and it cannot be provided unless he is detained.

Section 41 provides the power to impose a restriction order, and that can be done where:

I should have said that it is necessary for two medical practitioners to certify to the court that the relevant conditions apply; that is to say, that the individual is suffering from one of the four forms of mental disorder and the other criteria apply.

The special restrictions under section 41 are contained in subsection (3) and, among other things, they provide that:

Then it is said that none of the Part II provisions relating to after-care under supervision shall apply, and the following powers shall be exercisable only with the consent of the Secretary of State, namely: power to grant leave of absence under section 17; power to transfer under section 19; and power to order discharge under section 23. The Secretary of State's power of recall can be exercised at any time.

It is perhaps worth noting that in R v Birch [1989] 11 Cr.App.R(S.) 202, at 211 the Court of Appeal made some observations about a restriction order pointing out:

The court there noted, subject to two matters which are not of materiality, that if the court imposed a restriction direction under section 49 of the Act in addition to a transfer under section 47, the effect would be the same as if a restriction order had been imposed.

I turn, therefore, to section 47. This provides by subsection (1):

Subsection (3) provides that:

That led Mr Gledhill to submit that section 37(8) applied, and that therefore a transfer must have the effect of discharging the prison sentence, since by section 37(8) a court was not entitled to impose a prison sentence at the same time as a hospital order.

That is, in my view, the answer to that submission. Section 37(8) is concerned with the powers of the court in sentencing and it has no application to section 47 transfers. Indeed, the reference in subsection (3) to the direction having the same effect as a hospital order quite clearly is intended to apply to section 40 which, as I have already said, is side-noted "Effect of hospital orders..." and that is, and is, in my judgment, the only effect of subsection (3) of section 47.

The Secretary of State is empowered by section 49 of the Act to restrict the discharge of prisoners removed to hospital. He does it in this way. Subsection (1) of section 49 provides:

Subsection (2) provides:

Usually the Secretary of State will couple a transfer direction under section 47 with a restriction direction. I can, I think, again helpfully refer to the passage in R v Birch in which the Court of Appeal explained the effect of the transfer coupled with a restriction direction. It is at page 212 of the judgment and the court said this:

It is to section 50 which is the most important section for the purposes of this case that I must now turn. Section 50 has been amended by section 294 of the Criminal Justice Act 2003 and I shall therefore read it as so amended. So far as is material it provides as follows:

Subsections (2) and (3) have been substituted by section 294 of the 2003 Act and they read as follows:

Subsection (4) reads:

The effect of subsection (4), and the clear intention behind it, is that if an individual absconds from the mental hospital to which he is transferred that will be treated as him being unlawfully at large, as if the hospital were the prison from which he absconded. That is the intended effect of subsection (4).

I think there are only two other sections to which I need, for the time being, to refer. The first is section 74 of the Mental Health Act. That applies to a restricted patient subject to restriction directions. It provides that:

Section 295 of the Criminal Justice Act 2003 adds a new subsection (5A) which provides as follows:

The effect of all these provisions is that a restriction direction shall cease to have any effect on the notional release date, which is extended in certain circumstances to include a date prior to the notional release date when a prisoner might be able to secure his release by way of parole or by way of the special provisions in relation to release of short-term prisoners before they have served half of a sentence, subject to what are generally called tagging conditions or some such other provision.

Now, as I have said, and indeed as the Court of Appeal noted in R v Birch (and there is evidence before me from the defendants to the same effect) it is the normal practice for the Secretary of State to impose a restriction direction on ordering a transfer. But he will not do so if the transfer takes place very close to the release date. There would be little point in so doing in such a case because the restriction direction would cease to have effect on the release date. In the circumstances of this case there were two days to run and therefore one can well see why the Secretary of State took the view that a restriction direction was pointless.

Mr Gledhill points out that section 50, and indeed section 74, are confined to cases where a restriction direction has been ordered and, therefore, the provisions relating to the power to return to prison are limited to those cases. In those circumstances, he submits that if there was, apart from cases involving a restriction direction, a general power to return to prison, the provisions of section 50 would be unnecessary. If it could be done in any event, why require these specific provisions?

The effect, if that submission is correct, is that a transfer direction, if no restriction direction is imposed, means that the prison sentence automatically ceases to have any effect. It comes to an end. Accordingly, if the prisoner's mental condition improves so that his release from hospital is directed by, for example, a Mental Health Review Tribunal, before the release date, he cannot be returned to prison, nor can he be made the subject of any licence conditions in accordance with the Criminal Justice Act.

The quid pro quo, submits Mr Gledhill, is that he will be subject to the Mental Health Act. One goes to section 117 of the Mental Health Act to see what provisions there must be to look after him following his release from hospital. Section 117 provides for after care and reads:

This section can provide, so it is submitted, for the necessary safeguards to the public following the release of a patient. Thus, it is said, the restriction direction having expired or not being considered necessary, there is no reason why the sentence should continue.

This submission would apply also to cases where, for example, a long-term prisoner, who had been transferred to hospital and was subject to a restriction direction, reached his notional release date and the restriction order automatically disappeared. In such a case, too, Mr Gledhill submits that there would be no power to impose any conditions under the Criminal Justice Act scheme.

The power of control and the protection of the public is much greater in relation to the Criminal Justice Act conditions because they can result in a recall to prison and they can impose conditions, for example, not to commit further offences, not to go anywhere near the victim in the case of a violent offence, and so on. Those sorts of conditions would not be possible and there could be no immediate action to take the offender off the streets, if the only regime available was the Mental Health Act regime.

I am bound to say that that would be, in my view, a very strange result, and I cannot believe it is a result which Parliament could have intended when enacting this legislation. Unfortunately, this is not the only example of a situation where there has been a failure properly to marry up the Mental Health Act provisions with the Criminal Justice Act provisions in relation to sentencing, or at least not to make the matter clear beyond any doubt.

Indeed, Mr Gledhill submits, that where there is an ambiguity, as there is here, the court should not resolve that in favour of any power to detain, but rather should resolve it in the other way; that is, consistent with the approach that is taken to detention in accordance with Article 5, in particular, of the European Convention on Human Rights.

I should add that normally prior to release a prisoner will receive a copy of, and an explanation in relation to, conditions which he must comply with, and will be told, clearly, that any breach can result in a recall. In this case it seems that because the claimant was in hospital at the relevant time that did not happen, and he had not had explained to him, or shown to him, the relevant conditions before he was involved in the incident which led to his recall. However, no point has been taken in these proceedings in relation to that.

Mr Kovats submits that the key to this case is that the transfer direction does not of itself bring the prison sentence to an end. Section 50 is required because of the effect of a restriction direction, which is the same as that of a restriction order, and which would mean that there would be no power to release otherwise than subject to the strict conditions contained in section 41. In particular, there would be no power without section 50(1) for the Secretary of State to direct an immediate release to prison where a restriction direction existed. It was to ensure that that bar to release existed that section 50 was considered necessary.

I have been referred to a decision of the Court of Appeal R v Secretary of State for the Home Department, ex-parte H &Others [1994] 3 WLR at page 1110. That case involved a life prisoner who had been transferred to hospital under section 47 and had been made the subject of a restriction direction under section 49. It was, in that case, necessary for it to be the case that the tariff part of the life sentence continued to run while the applicant was in the mental hospital. Otherwise he would face the position that the tariff part of their sentence was deferred for a very substantial period of time. Thus it was common ground in that case, in the sense that it was conceded by counsel for the Secretary of State, that the sentence continue to run during any period of transfer to a mental hospital.

The Court of Appeal, Rose LJ giving the only reasoned judgment, agreed with that concession. What Rose LJ said at page 1120, letter C, was as follows:

The salient point derived from that paragraph is that the court took the view that the concession was correct. It is true that it carries perhaps less weight than would be the case if it were a decision following argument on the point, but none the less it is important to note that the court took the view that that was correct.

In my view, it manifestly is correct. It would be strange, to say the least, if it were otherwise. Indeed, Mr Gledhill was forced to concede that if a restriction direction were imposed the prison sentence would continue to run. There was some faint suggestion that the provisions of section 50(1), and the issue of a warrant by the Secretary of State, would bring back to life a sentence that otherwise had been killed off by the transfer, but that seems to me to be a wholly artificial way of looking at the provision.

As I have said, the evidence is that the practice of the Secretary of State is generally to impose a restriction direction. I find that confirmed in the evidence of Mr Talbot who is the casework manager of the Early Release and Recall Section of the Sentencing Policy and Penalties Unit in the Home Office. In fact, he goes further and says that the practice is always to make a restriction direction unless it is proposed to transfer the prisoner to hospital within days of his release date and the nature of his offence suggests that the restrictions are not necessary for the protection of the public from serious harm over that short period.

He says this in relation to the points being made by Mr Gledhill in relation to this case in paragraph 7 of his statement:

That is an explanation of the policy lying behind the actions of the Secretary of State. It does not directly answer the points made by Mr Gledhill, but it is consistent with the approach that transfer does not affect the sentence, but that the powers specifically relating to cases where there are restriction directions are needed to avoid any argument about the powers to return to prison in the case of a transfer where there is a restriction direction.

It does not seem to me that the provisions of section 117, which enable the Mental Health Act after-care provisions to apply, are inconsistent with the possibility of co-existing Criminal Justice Act sanctions to be imposed where the individual in question has committed a criminal offence. Of course, as it happens, it is plain that this particular claimant has been in breach of his licence conditions on previous occasions. He must have been in breach to attract the extra 176 days when he was originally sentenced to 3 years in May of 2000. We know that he was recalled in February after his initial release on licence in January. It is clear that in his case the need for the licence conditions to exist has been demonstrated.

In all those circumstances, I am satisfied that, as I have said, the true construction of the relevant provisions means that the sentence, and accordingly the power to impose the licence conditions, continues to run, notwithstanding that there was a transfer to hospital.

Accordingly, there is power to impose such conditions as would normally be imposed under the Criminal Justice Act procedure, and, more importantly, in the case of any breach there is power to recall to prison. Accordingly, the recall of this claimant to prison was lawful and this claim must therefore be dismissed.

MR GLEDHILL: My Lord, just a couple of matters, if I may. First of all, just one point on the submissions made in relation to section 117. Your Lordship then went on to say that I had submitted that there was also power in the Tribunal to impose conditions. That was not part of my submissions, and in fact could not be, because it is only in relation to a section 73 restricted patient that there is the power to impose conditions.

MR JUSTICE COLLINS: You are quite right, thank you very much. I will amend that.

MR GLEDHILL: Yes, so the only thing I was referring to was --

MR JUSTICE COLLINS: The after-care conditions which were, you said, inconsistent with --

MR GLEDHILL: Yes, and I think I may have added reference to section 25A of the Mental Health Act which is the supervised discharge which in effect says, "Well, we will supervise you once you are on after-care", but that was all that I referred to there.

MR JUSTICE COLLINS: Yes, I think that is maybe what I had in mind.

MR GLEDHILL: Yes, I am sure it is. My Lord, one uncontroversial application, might I have a public funding detailed assessment?

MR JUSTICE COLLINS: You may indeed.

MR GLEDHILL: If there is not a certificate on file, which seems to be the normal --

MR JUSTICE COLLINS: The usual 14 days.

MR GLEDHILL: Yes, my Lord. The final point is an application for permission to appeal which I put, in essence, on this basis. Your Lordship said that -- and that is clearly right -- that there is a lot of ambiguity in the provisions of the Mental Health Act as they interrelate with the Criminal Justice Act. In that circumstance then it is perfectly possible that the Court of Appeal might take a different view from your Lordship. So on the first heading of permission to appeal I say I am within the test. It may well be the Court of Appeal will agree with you, but if there is the ambiguity there then I meet the necessary test.

MR JUSTICE COLLINS: I take the point and there are problems in the legislation as we indicated. I personally think that the result is one which, I would imagine, the Court of Appeal would be unlikely to want to overturn unless it felt it was essential because of the statutory provisions. Have you had a word with your opponent about this?

MR GLEDHILL: No, it has not been possible to do that because there is nobody here.

MR JUSTICE COLLINS: I am quite sympathetic to this, but I am not quite sure why no one is here. I think, in the circumstances, what I will do, Mr Gledhill, is indicate that I am inclined to think that this might be an appropriate case for leave to appeal for the reasons that you have indicated, but I think before making any final decision I should give them a chance to make representations.

MR GLEDHILL: Yes.

MR JUSTICE COLLINS: I am happy that that is done in writing.

MR GLEDHILL: Yes.

MR JUSTICE COLLINS: Obviously it must be shown to you and you can add anything which you want to add.

MR GLEDHILL: Well, I will make sure that I speak to Mr Kovats about that. Can I say, if your Lordship had been against me on the first ground, or minded to be against me on the first ground, I would accept that for more or less the same reasons as your Lordship sees we put the first ground, that creates another substantial reason for the Court of Appeal to consider this. Particularly in light of the fact that, as we know, Parliament is, at some stage in the near future, supposed to be redrafting the Mental Health Act and that might give them some kind of --

MR JUSTICE COLLINS: Well, I know, as I say, I am broadly sympathetic, I can see that it might be argued, but it is better to let the Court of Appeal decide whether it should in a case such as this.

I forget the timing. Obviously we are late in term and this must be finally dealt with by the end of term. I cannot see that it should take very long. What I am inclined to say is that by next Wednesday anything to the contrary must be submitted.

MR GLEDHILL: Yes.

MR JUSTICE COLLINS: If they do not by then, then permission will be granted.

MR GLEDHILL: I am much obliged.

MR JUSTICE COLLINS: Running from then which gives you your relevant times for pursuing it if you wish.

MR GLEDHILL: I am much obliged. It may be that -- I can certainly convey what your Lordship's judgment is to Mr Kovats -- I do not know if he would wish to seek a transcript before he made any representations. That is the only practical --

MR JUSTICE COLLINS: You better ask for an expedited transcript. I am sorry about that.

MR GLEDHILL: My Lord, I am grateful for that.