I have a client detained under Section 47/49.He was given a life sentence and then subsequently transferred to hospital.He was dealt with during Covid and all interactions with the barrister etc were over video.The RC feels that if he had been seen face to face and in the usual way he would have been given a section 37/41.I have contacted a couple of Criminal Solicitors to see if they will take it on but they are reluctant as they question funding.Wonder if anyone else has come across this.I think I saw a case about it somewhere.
Yes there’s a few cases where the Court of Appeal has replaced a custodial sentence with a hospital order (R v LV; R v Osmond [2025] EWCA Crim 835 - Mental Health Law Online; R v Jenkins [2025] EWCA Crim 1657 - Mental Health Law Online).
If the patient has not yet appealed to the CACD, they could make an “out of time” application. If they have already appealed and lost, I believe they would need to be referred by the CCRC.
You could enquire with Julie Ann Boyle (she did both Osmond and Jenkins above).
The RC is entitled to feel what s/he likes - just like the next person. The RC’s reported feelings are not accompanied by any substance that engages a point of law explicitly.
Which supports my point that justice is about who can find the right amount of money to cough up. But nobody believes me because I am actually NOBODY.
I’m not aware of any sentence appeals with similar facts, but it sounds as though it would be worth pursuing further.
Legal Aid for criminal appeals is subject to means and merits tests – which aspect of funding did the two solicitors question?
In a different context there are some judicial comments about how face-to-face assessments are preferable: Remote assessments and coronavirus - Mental Health Law Online.