P in medium security is a prisoner who was transferred many months ago into hospital for treatment under Section 48/49 of MHA 1983.
P was placed on S37/41 as the 48/49 fell away (circumstances unknown and not recorded).
Then later on S35 invoked by the court, which caused the 37/41 to fall away.
The S35 was renewed twice by the court.
But before 12 week limit on S35, Section 3 was put in place (documents explaining this cannot be found).
Then on about a month later the Court rescinded the S35 and ordered remand âto HMPâ (no named prison).
The court was clear in its remand order directing back to HMP.
There may be several distractions arising from the above. âWe are where we areâ as they say. If there is any lack of logic among the above, youâll have to accept it because thatâs the situation as it is. No further relevant details are findable or if found later on cannot be disclosed here.
So -
In the absence of any named prison, is the Section 3 valid in the face of the remand order? (I donât think so but Iâm looking for alternative logic).
S3 is up for renwal quite soon. Can it be lawfully renewed in these circumstances (assuming legal criteria for S3 are met)? (I doubt but looking for alternative logic).
Iâm sure others can correct me, but I didnât think a S35 can make a S37/41 âfall awayâ. I believe a 37/41 or 41 carries on until itâs discharged by the Tribunal or the MoJ. Iâve met people who are under dual 37/41s, for instance. I suspect the presence of a 37/41 might impact the outcome.
Ss.48 and 49 will have ended because the court ended the remand by ordering ss.37 and 41.
The next bit of that sequence cannot be correct so it is not accepted, because an order under s.35 does not have the effect of causing ss.37 and 41 to fall away.
In terms of the relationship between ss.35 and 3; they can co-exist and often do, because there is no authority to treat under s.35. However, according to your sequence, ss.37 and 41 are still running, so there would be no need for s.3.
The s.3 will continue to run for 6 months from the date of remand to prison because of the effect of s.22.
[EDIT] Ss.37 and 41 continue to run without limit of time following the remand to prison; see Part II of Schedule 1 of the Act.
A court ordered remand to prison doesnât bring a s3 to an end immediately. The two can co-exist for a period. See s22 MHA.
Therefore, in this odd sounding situation where the remand hasnât actually been put into effect and the patient remains in hospital,I canât see any reason why the normal process for renewing s3 wouldnât apply.
Unfortunately it doesnât matter now what anyone thinks about the process and whether parts of it are wrong. Why? Because time has trapped a future that has become the present. I apologise.
I quote myself because apparently itâs needed. Hence the issue now is whether "S3 is more powerful than a remand order made by the Court?" Why? Because right now - in the present - a S3 stands above the Courtâs order. This must be something novel - cuz Iâve not come across it in 30-odd yrs of psychiatric practice.
So as not to inhibit personal choice, others may continue to pick at whatâs wrong but it wonât change the present.
With all due deference, it is relevant to your question. As Guy said, if the s.37/41 was never lawfully removed, that remains the operative authority for detention, and any transfer would be subject to MoJ approval. That point necessarily informs any analysis of whether s.3 could supersede a remand order. The MoJ will have this information, so itâs easy enough to find out.
Regardless, your response adds little given that Guy and Richard have already provided an answer to the question posed.
Zac is correct and while you may not think it matters, it does; especially if this is a real scenario and/or someone else reads your sequence of events and erroneously believes it to be a correct statement of the law. What you think may have happened in the past, according to what you posted, does not reflect the legal position in the present; any s.3, s.35 or period of imprisonment will have had no effect on those orders made by the crown court.
The relationship between s.3 and being imprisoned (via remand or sentence), is as already referenced; it is dictated by s.22 which in terms of expiry and duration, works in a similar way to AWOL provisions under s.18.
By way of example, if s.3 is due to expire 3rd August 2025 and the person is imprisoned on 2nd August 2025, the s.3 does not expire on 3rd August, but will continue to run until midnight 1st February 2026 unless it gets discharged in the meantime or the person is released within 6 months of imprisonment. As such, the need for and therefore the ability to renew the s.3 when it was originally due to expire, no longer applies.
It is by no means an unusual scenario for most Mental Health Trusts.