Attorney-General’s Reference No 54 of 2011: CACD 2012

Hughes LJ said that the detention for public protection regime and that under sections 37/41 of the 1983 Act have features in common. Under both, release is discretionary in the hands of the Secretary of State, effectively the Ministry of Justice. There is no absolute right to release. The test for the exercise of the discretionary decision to release is whether the offender is a danger to the public. Release is conditional and an offender is likely to be recalled. He emphasised the ‘absolutely crucial’ difference between the two regimes. If a sentence for public protection is made, release is dependent upon the responsible authority being satisfied that the offender is no longer a danger to the public for any reason; principally the risk of relapsing into serious crime. Moreover, under this regime, a release is upon licence and those licence conditions can be designed to try and prevent a relapse eg by preventing association with dangerous criminals. That licence can be revoked if the offender shows that he remains a danger to the public from committing serious crimes.


Hughes LJ VP


[2012] 1 Cr App R (S) 106


Mental Health Act 1983 37 41


England and Wales

Criminal Sentencing

Updated: 08 May 2022; Ref: scu.519000