Thanks Jonathan. You are forcing me to read caselaw on a Sunday! At least it gives me the opportunity to avoid the actual work that I should be doing instead.
I am not a criminal lawyer so I don’t know whether what Stephen Simblett and Roger Pezzani say in their argument on behalf of CS is correct i.e., “38. The way in which section 11(3) of the Criminal Appeal Act 1968 confers functions on the Court of Appeal shows that if a prisoner’s sentence is quashed, the Court’s replacement sentence or order takes effect not from the date of the order but from the date of the now quashed sentence. If a sentence is quashed it is void ab initio and a nullity. Once a sentence is quashed, the Court has power under section 11(3)(b) to pass a sentence or order “in place of it”. For a fresh sentence or order to take the place of a quashed sentence, it must take effect as from the date of the quashed sentence. Any other interpretation of section 11(3) would be absurd and should be avoided.”
If this is correct, then it would seem to resolve any argument that the CoA‘s imposition of a 37/41 has retroactive effect because it would have to have this effect as to do otherwise would create a gap in lawful detention.
However, from my reading of section 11(3) of the Criminal Appeal Act 1968 it does not follow that quashing a sentence of imprisonment means voiding it ab initio but that may be just my reading. I would still prefer the reality of the situation to be reflected in the legal scenario which would then be for the CoA to say: CS was under an IPP and 47/49 yesterday but is now, today, under a 37/41.
I think counsel for CS, the SoS and the UT all wished to reach the “right” conclusion here which was not to disadvantage the patient by saying CS had to wait for a further 6 months to apply to the FTT again given his new 37/41 status.
The UT did this by distinguishing MN, which was to say that MN going from restricted (47/49) status to not. 37 unrestricted status was different from “staying” restricted (not least as in MN, the patient could apply himself in the first 6 months of the not.37 or as we already had a MHT date in that case, the Judge said to keep that date and have a presumed application by MN which come to think about it is quite an odd way of proceeding and assumes a lot of things).
The ratio in CS seems to be therefore that if a patient remains restricted throughout then the FTT application continues thus making it irrelevant in CS’s case that he could not then apply in the first 6 months of the 37/41 order (one would still need to know however for future reference when the 37/41 was deemed to start of course).
However, I don’t think this logic (I.e., stay restricted, keep your FTT application) is necessary.
A colleague in the office had a similar same factual matrix recently: 47/49 to 37/41 but patient (Mr R) did not have a MHT application in at the time the CoA changed his section. My colleague then sought a discretionary referral from the MoJ for a FTT in (what we assumed was) the patient’s first 6 months of the 37/41. The MHT did make this discretionary referral 3 months after the CoA changed the client’s section to 37/41.
I am not against FTT applications continuing despite changes of section (in fact quite the opposite) but if the logic of MN was correct, a MoJ referral in MN’s or CS’s case would “cure” the problem with the patient not being able to apply in the first 6 months of the “new” 37/41 (or losing an extant application in MN’s case) and avoid the need to differentiate between restricted and non-restricted patients when sections change.