Bail in criminal proceedings to a hospital

Hello everyone

In a murder case can a person be bailed with a condition of residence (not for psychiatric reports) to a mental health hospital where they are detained under Section 3?

Not going to be a Section 35,36 or a 38 application. Simply the bail issue alone?

CPS guidance says you cant (presumably as it forces treatment) but just cant seem to find the relevant legislation or case law.

Any help you can give would be warmly received.

I would look seriously at the security issues, given it is murder. There no reason why48/49 MHA should be used. If the patient is on Section they can apply to the Hospital Managers Review or Tribunal. Given the serious nature of the alleged offence. I would suggest contacting the Mental Health Casework Section at the MoJ. Plus they have form you can download to look at transfer under 48/49 MHA

Hi there. From your wording, it sounds like the person concerned was on s.3 prior to the arrest for murder, but I may be misinterpreting this.
I’d have thought with such a serious offence that police and CPS would insist on the criminal justice route taking precedence, regardless of any previous civil section.
If I have misunderstood, I find it very difficult to imagine an assessment in custody under s.3 taking priority over the CJ route, even if the person concerned was extremely unwell - in my experience, even with comparatively minor offences the police and CPS are for instance very unhappy with voluntary admissions and bailing to hospital. At the very least, they’d want an MSU admission in the case of alleged murder!

Patient on a Section 3 prior to criminal charges being brought (post req).
CPS own guidance says not to use bail for hospital admission and state a condition of residence, other than for reports Should have been a Section 38 application I feel from CPS. Thank you anyway.

A little different in this case as time has lapsed since the alleged offence and patient on a Section 3 and then a postal req comes through. Thank you anyhow for your response.

There’s no specific legal obstacle to this, but it’s fraught with practical problems and legal pitfalls because the fact of criminal bail with a condition, post charge doesn’t bind the RC for a moment They could take a view at any point that grounds for discharge are met, bearing in mind criminal bail can go on for months and months as some trials are now being listed for 2024 …

It’s a fairly silly idea but if the s3 was in place before, it may have been someone’s instinct not to disrupt that care and of course, the NHS are at liberty to transfer the person to a different level of therapeutic security if they wish. Magistrates are discouraged in law from granting bail in murder cases - but I should imagine ongoing need for inpatient hospital care might be thought sufficiently exceptional.

Regardless, if it is to be done, it’s absolutely crucial that the senior investigator and RC communicate about how to handle the potential the person ends up discharged whilst still on bail - it would mean the person goes back to court to consider afresh the appropriate conditions.

Hope this helps,


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Thanks Michael. My view entirely. I am guessing the circumstances allow for Section 17 leave and the benefit is retained hospital admission. An interesting one to say the very least.