I have a client who has been detained in hospital since 1981 under ss47/49 having been convicted of attempted murder and given a life sentence in 1979. There is no minimum tariff noted on the hospital transfer direction.
His treating team are now of the view that he no longer meets criteria for detention and are looking at suitable community placements with a view to applying to the tribunal.
Will the lack of a minimum tariff cause any potential issues with the subsequent parole board hearing and if how can this be overcome?
The MoJ have advised that we will need to go back to the Crown Court to have a minimum tariff applied retrospectively but were unable to give any advice regarding the parole board approach and whether this is actually required in practice.
Does anyone have any advice/guidance on how to proceed ?
My understanding is that without a tariff, you cannot be released into the community. My lifer client with no tariff was sent back to prison as it was deemed the only ‘discharge’ route to serve out the rest of his sentence (and by extension his life). I imagine that’s why the MOJ has recommended to get a retrospective tariff so you can then argue for a recommendation for a ‘conditional discharge’ in the usual way and then for him to have a parole hearing to be released into the community.
I’d imagine you’d have to consult a criminal appeal lawyer for views.
Back then the Home Secretary set the tariff rather than the court. It might be worth double checking – maybe it was done but forgotten over the years. If not then, yes, I think you’d need to ask the court to set a minimum term before the Parole Board would release.
Thanks for the advice. My client has instructed a criminal appeals lawyer. The MoJ have confirmed that there is no information available on the file to indicate that a minimum tariff was set at the time of sentence (he was sentenced in 1979) and have also stated that as my client received a discretionary life sentence the SoS cannot now impose a minimum tariff.
I am assuming that there is no alternative but to ask the Court of Appeal to set the minimum tariff retrospectively so that we can then proceed to the tribunal then parole board or is there any other provision/discretion that might be available?
I don’t think a lifer without a tariff would get referred to the Parole Board, but he could still apply to the Mental Health Tribunal. A criminal lawyer should know how fast the court would be in setting a tariff, which would help you decide when to apply to the tribunal.