If a restricted transfer prisoner is successful at the Court of Appeal and ends up with a restricted hospital order, when you think the hospital order began? On the same date as the original sentence, or on the date of the Court of Appeal decision? This would be relevant for tribunal eligibility.
The patient in CS v Elysium Healthcare [2021] UKUT 186 (AAC) argued that it was the old date but the Upper Tribunal didn’t say anything about it.
Thanks.
Hi Jonathan,
I watched a film the other night (Donnie Darko) that had (spoiler alert) a time travelling element to it. I didn’t understand how what happened at the end of the film happened because of this. Maybe this was just me because my wife said that she did understand it. This makes me wary of any court orders which may be deemed to have a retroactive (in effect time-travelling) effect.
Turning to your question, I have encountered this issue in practice albeit not recently. IIRC, the date of the CoA’s order was taken as the start date of the fresh 37/41 order (i.e., the old criminal sentence was quashed on the day of the CoA decision and a new 37/41 order imposed on that date). Thus the patient was not eligible to apply in the first 6 months, was able to apply in the 2nd 6 months following on from the CoA order and so on as per any other 37/41 order starting on the date of the order of the CoA.
Best wishes,
Ian Campbell
Campbell Law Solicitors
Thanks. I guessed that’s how the tribunal secretariat would see it, but I’m not sure it’s right. I’m not sure it’s wrong either… what do you think?
If the Court of Appeal substitute one prison sentence for another, the new sentence begins in the past. Why not the same for a restricted hospital order? I suppose if it were an unrestricted hospital order you’d have to imagine not only that it had existed but also that it had been renewed in the past…
I’ll cut and paste below how the patient argued it in CS. The argument included “Throughout, he remained a restricted patient” and the judge’s reasons began “The patient has remained throughout a restricted patient”. So I think maybe the judge agreed with the argument about the start date.
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 a replacement sentence/order took effect from the date of the Court of Appeal’s order then, in Mr S’s case, since his sentence of imprisonment for public protection had become a nullity, “there is no sentence to which prisoners are subject in the period between sentence and appeal”. The undesirable consequences of this include “that all those who had been detained between sentence and successful appeal against sentence would have an action for false imprisonment”: see R v Governor of Brockhill Prison ex parte Evans (no. 2) [2001] 2 AC 19.
The correct legal analysis is that, as a result of the Court of Appeal’s order, the patient was treated as if a hospital order were imposed on 14 May 2008 (the original sentence date). On that basis, Mr S had the same tribunal rights as any other section 37/41 restricted patient namely to apply to the tribunal once he had been a restricted patient for six months and, thereafter, every 12 months.
Under the MHRT(W)’s approach, Mr S was disadvantaged by his successful appeal against his sentence of imprisonment for public protection. Throughout, he remained a restricted patient and all that changed was the type of restricted patient. This switch from one type of restricted patient to another was the only reason for denying him the review of detention to which he would otherwise have been entitled. Such an outcome was absurd and contrary to section 11(3) of the Criminal Appeal Act 1968 which requires the Court of Appeal to ensure that “taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below”.
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.
Should say that the SoS referral in an unrestricted case would of course be the SoSHSC and not the MoJ.
Jonathan - don’t know the answer, but the patient’s arguments in CS don’t seem uncontestable.
First, the assertion that a substituted sentence renders the old sentence void ab initio sounds odd. By that argument,wouldn’t anyone whose prison sentence was reduced to a community order on appeal have a claim for unlawful imprisonment ? I thought (though I can’t quote any law on it) that old sentences are like other validly made court orders - effective until set aside and not retrospectively invalidated.
Second, the wording in s11(3) of the Criminal Appeals Act 1968 is effectively the same as that in s36(1) of the Criminal Justice Act 1988 which gives the Court of Appeal power to resentence after a reference by the Attorney General ("[the Court may] quash any sentence or order which is the subject of the appeal, and in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence.")
If a prison sentence were substituted for a community order under the latter power, it wouldn’t be taken to run from the date of the community order, would it ? That suggests that no fixed rule on backdating can be derived from the words of the statute, and they need to be approached pragmatically.
If so, I think pragmatism favours treating the hospital order as being made on the date of the appeal court’s decision. Like a community order and a prison sentence, a prison sentence and a hospital order are different creatures with their own statutory schemes - and the scheme in Part 3 of the MHA does not tolerate implied backdating in other situations (eg transfers in from Scotland). There is no injustice involved in not backdating (as a hospital order is not a punishment, even if it seems that way). And backdating could have some odd consequences. As you’ve pointed out, a substituted unrestricted hospital order would either be meaningless if made more than six months after the original sentence or else would have to be deemed to have been renewed as many times as necessary, which seems like quite a lot to read into the statute. Also, if (as sometimes happens) a restricted hospital order were substituted years after the original sentence, arguably the SofS would then be required by s71(2) immediately to refer the patient’s case to the tribunal to (in effect) reconsider one of the questions the appeal court has just decided.
Richard
I have looked at the last order we have in the office re a change from IPP to 37/41 via the CoA.
The CoA explicitly stated in that particular case that the orders “begin to run from today” i.e., the date the CoA considered the case and made the orders.
It quotes s29(4) Criminal Appeal Act 1968 as enabling it to make orders in those terms “(4)The term of any sentence passed by the Court of Appeal under section 3, 4, 5, 11 or 13(4) of this Act shall, unless the Court otherwise direct, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies.”
So, whilst it is possible for the new order to be in effect backdated, the CoA simply does not need to do this and can simply quash the prior order on the day and make a new one which operates wef that same date.
I do not know what the CoA order in CS actually said so it could be either. Only looking at the CoA order will one be able to tell.
This has been really interesting. Thank you both. I’ve marked Ian’s latest reply as the solution 