We have a s37/41 who has committed a criminal offence whilst detained . The Dr wants the matter dealt with by criminal courts . Is it possible for the criminal courts to give a prison sentence of custody that is concurrent with a s37/41 .
Not possible.
Yes, the court can pass any sentence they see fit (obviously account will be taken of the current hospital order). If itās custodial, the ss.37 & 41 will tick along in the background, if not discharged by those with the power to do so.
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The question was āIs it possible for the criminal courts to give a prison sentence of custody that is concurrent with a s37/41 .
A concurrent prison sentence with a section 37/41 isnāt legally possible
The question was about a patient already subject to 37&41. A subsequent (and concurrent) prison sentence is entirely possible. See s.22 and Schedule 1, Part II, 6.
I think I understand the point youāre making. The patient would not be āin custodyā in prison whilst under a s.37/41, but the custodial sentence would still run concurrently whilst they are in hospital and subject to the hospital order.
We seem to be answering three similar but different questions:
- Can a court impose a prison sentence and a hospital order at the same time? No. This is what Ben had in mind.
- Can a court give a prison sentence to a patient already detained under the MHA? Yes. This is what Guy has in mind.
- Can a court give a hospital order to a patient already serving a prison sentence for an earlier offence? I guess so, in theory, though Iāve never seen it in practice. Likely the prisoner would already have been transferred. I think this is what Zac has in mind.
I donāt think I expressed it quite right. I was echoing Guyās point while trying to make sense of what Ben was saying. I had assumed Benās misunderstanding was that someone could be subject to a s.37/41 order and at the same time be serving a custodial sentence in prison (which we know is impossible since the s.37/41 takes precedence).
But we know that a person detained under s.37/41 may also be given a prison sentence, and would technically be āservingā it concurrently - but in hospital rather than in prison.
This sort of thing always involves mental gymnastics ā but the RC in the original post above might want the patient to be punished by being sent to prison for criminal behaviour on the ward, and Iām sure itās possible. He could maybe square the circle by saying a conditional discharge would be suitable while the patient is in prison but not into the community.
They would be serving it in prison with the 37&41 in the background, unless a transfer to hospital under s.47(+49) was made. You cannot ignore the sentence made by the court; it must be acted upon.
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- Just a few thoughts; reference to s22 is not applicable in this instance since it relates to the civil detention provisions under Part II of the MHA; s22(2) makes this clear.
- Whilst the Courts do have discretion to dispose of matters as they see fit, itās clearly not an unfettered right. In this instance where the individual has already satisfied the Crown Court that they meet the detention criteria under s37/41, it would be more than a maverick Judge that would simply set aside such a previous Court disposal and deem it appropriate to pluck them out of a treatment environment and put them in prison; save for circumstances where contemporary compelling clinical evidence judges that the individual no longer meets the statutory criteria under s37/41; in which case, either a conditional or absolute discharge would appear to be appropriate, neither of which would be a bar on the individual receiving a custodial sentence.
- However, to suggest a preceding and ongoing s37/41 could run āin the backgroundā whilst the individual is in prison; or conversely, that the individual could remain in hospital subject to the s37/41 whilst having a custodial sentence in the background, would be to suggest the Court could concurrently endorse adopting two very different legislative conduits for dealing with a subsequent offence, both having different rationale, purposes and ideology for their adoption. And if a Court did consider that both rehabilitation and a penal element were necessary in reflecting the nature of the offence and the appropriate disposal thereof, then consideration of a s45A might be more suitable.
- Specific to the query in this instance, I think on the face of it there would be considerable and potentially insurmountable āmental gymnasticsā involved in applying a custodial sentence to a preceding and ongoing s37/41. The initial avenue of pursuit should be to establish whether the Doctor, presumably the treating Responsible Clinician, and his current clinical judgment is one that no longer considers the individual to meet the detention criteria under s37/41; in which case an urgent request of the Secretary of State should be made by the RC under s42.
Section 22 is applicable to Part III detention provisions (unrestricted and restricted); see Schedule 1 of the Act.
I have worked with several patients originally detained under s.37/41 who are later convicted of another offence and received a prison sentence which they served in prison. The 37/41 sat in the background. When the prison sentence ended they returned to hospital, most were soon conditionally discharged.
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Guy Davisās last post was quite right in highlighting the additional provisions within Schedule 1 relating to s22; my apologies to him for not previously acknowledging this.
Given the prison sentences served with the s37/41 sitting in the background, did the Court utilise the slightly vague applicability/provisions/circumstances of s22 to make its disposal of the matter fit the outcome youāve confirmed by broadening its consideration of the sentencing guidelines/parameters in light of updated clinical assessments?
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From my understanding - once a s37/41 hospital order is made via the criminal courts - the s41 restriction order then hands over control to the Secretary of State (MoJ).
So if the patient later commits another offence and is sentenced by the same courts - they can not automatically physically serve that sentence in prison unless the Secretary of State decides whether or not the new sentence takes precedent or the hospital order.
If the Secretary of State does not intervene - the s37/41 will still remain active and the sentence that the patient has just been given will run in the background.
I think maybe thatās what Guy was meaning - once the criminal courts hand the hospital order they can not just revoke it and begin a new sentence. That order still remains. It is only later determined by the Secretary of State whether or not to enable the sentence to be at the forefront or the order in the background if it is necessary.
I think thatās how Iāve interpreted it - unless I am wrong here? Because ultimately the power lies with the Secretary of State.
An immediate observation and concern arise from that interpretation; firstly, itās unclear whether ClarkeMarās brief comments and description of the outcome are underpinned by the nature of considerations and interventions suggested in Sarah2ās comments. Secondly, the concern would be that if there might be the sort of interventions by the Secretary of State (SoS) as suggested, then weāre potentially beyond the sphere of the SoS expressing their view by way of evidence, and rather into the realm of the separation of powers potentially being compromised by the executive actively intervening in the outcome of a matter that should exclusively be one for the judiciary.
On a Thursday morning absent of coffee as yet, I long for clarity!
When I say āinterveneā I meant the SoS still follows what is within regular judicial process.
I was explaining that before anything is actioned the SoS executes the decision made by the courts. In other words - there is a legal process that occurs before anything is automatically put through with the SoS making the final call.
Iām no expert on the powers of a secretary of state, but I am almost certain that a restriction order does not give the SoS complete control of a patient, to the extent that they can interfere with a sentence ordered by a court; indeed they could be held in contempt for doing so. A restriction order merely gives the SoS certain limited powers, albeit significant ones (the Tribunal does not have to defer to the secretary of state on the matter of discharge).
If a restricted patient is sentenced to imprisonment (the court having abided by sentencing guidelines including consideration of the need to make a hospital order), they are required to go to prison until such time (if necessary) it is decided that they should be moved to hospital; a power that the SoS can exercise under s.47.
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My post was saying the SoS has the final call to make when someone is already on a hospital order under s37/41. Not already in prison serving a sentence.
My wording e.g. āIf the Secretary of State does not interveneā was not meant to express that they literally bypass the law, but, they stay within it.
I could have phrased it better - however, I think everything else that I had written was clear to highlight my overall point.
Iām still unsure what you mean by that Sarah. Are you saying that at the point the person (already subject to 37&41) is stood up in court listening to the Judge pass a sentence of imprisonment, the SoS may then step in and arrange for the person to be transported to hospital (EDIT) on the strength of the already existing 37&41?