QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CAROL THOMPSON||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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Official Shorthand Writers to the Court)
MR M CHAMBERLAIN (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
Crown Copyright ©
"She suffers from schizo-affective disorder with episodes of depression and paranoid psychosis (persecutory delusions and illusions), in the past resulting in suicide attempts as well as bulimia nervosa and eczema."
"As you were sentenced to 12 months or more imprisonment ... the Probation Service will remain in contact with you whilst you are in hospital and will provide post-release statutory supervision under the Criminal Justice Act 1991. A licence will be issued on the date restrictions cease under the Mental Health Act i.e. 24 December 2002, unless early release on licence has been approved before then, and will remain in force until 17 April 2003."
"Our normal policy 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 the offence suggests that restrictions are unnecessary for the protection of the public from serious harm over that short period."
"I am now writing to inform you that her conditional release date of 24 December 2002 is incorrect. The correct release date for [T] is 10 March 2003."
"Removal to hospital of persons serving sentences of imprisonment, etc."
The material parts of section 47 are as follows:
"(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners-
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;
The Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; ...
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.
(5) References in this Part of this Act to a person serving a sentence of imprisonment include references-
(c) to a person committed by a court to a prison or other institution ... in default of payment of any sum adjudged to be paid on his conviction."
"Where a transfer direction is given in respect of any person, the Secretary of State, if he thinks fit, may by warrant further direct that that person shall be subject to the special restrictions set out in section 41 above; and where the Secretary of State gives a transfer direction in respect of any such person as is described in paragraph (a) or (b) of section 48(2) above, he shall also give a direction under this section applying those restrictions to him."
"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; ... "
The special restrictions in section 41 are set out in section 41(3) and require, for example, that the Secretary of State has to agree to various developments, including leave from the hospital or transfer. They control discharge otherwise than via a Mental Health Review Tribunal. By section 42 the Secretary of State may lift a section 41 restriction order if it is no longer required for the protection of the public from serious harm.
"Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may-
(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or
(b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid, ...
(2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect on the expiration of the sentence."
"The Home Secretary's current practice is almost invariably to impose restrictions on the transfer of a prisoner under section 72 [the predecessor of section 47 of the 1983 Act], the only exception being prisoners transferred a month or less before their earliest date of release (EDR) from prison (though in exceptional cases some of these are also transferred with restrictions). The reasons for this are-
I. To preserve the right to send a patient back to prison if his condition improves significantly or is found not to be treatable or not to require treatment;
Ii. to ensure that, generally speaking, a transferred prisoner is not set at liberty substantially earlier than he would have been if he had remained in prison ...;
Iii. to enable arrangements for compulsory supervision of a patient to be made as a condition of his discharge where this takes place before the expiration of his original sentence."
"There are no reasons given for rejecting the submissions of the treating psychiatrist and [T's] solicitors (the Home Office having done nothing but state what its usual policy is). This renders the decision unfair: the matter related to [T's] liberty and right to appropriate treatment for her mental illness, and as such it is appropriate that reasons be given."
"... at the time that the matter presented itself to the Court of Appeal Criminal Division [the proper sentence] was one of two years' imprisonment. The court's judgment on that occasion, delivered by Beldam LJ, concluded in these words: 'Such sentence will run from 9th December 1998.'"
"... it seems to me that the notification by the Prison Service on 22nd April to the Applicant that he would be released on the 22nd November - coming as I did, in the wake of the judgment of the Court of Appeal Criminal Division to which I have referred - can properly be said to have raised in the Applicant a legitimate expectation, which, on any view, must ... have persisted for several months, that he would be released on 29th November. Put another way, it would to my mind simply be unfair, particularly bearing in mind that the liberty of the subject is involved, for him to continue to be incarcerated."
"... because the Applicant was told on 22nd April 1999 that he would be released on the 29th November, it would be unjust that he should be required to remain in custody after that date."
That is the totality of what was said about that issue in that case. Several pages of the judgment are taken up principally with a disagreement between the two judges as to another ground of challenge.