Regina (D) v Secretary of State for the Home Department: QBD 19 Dec 2002

The applicant had been a discretionary life prisoner. His minimum period of detention had passed, but he continued to be detained under a transfer order for his treatment as mental health patient.
Held: The absence of any means for him to challenge his continued detention infringed his rights. Had the Mental Health Review Tribunal decided he was no longer to be detained, the Secretary of State had a discretion as to whether the case should then be referred to the Discretionary Lifers Panel. The claimant had a right to such a referral. The case of Benjamin now required the procedure to recognise that right. The legislation was not compatible with the Convention because a patient in respect of whom a Tribunal notified the Home Secretary that he should be conditionally discharged, but that if he were not discharged he should continue to be detained in hospital (see section 74(1)(a) and (b)), did not have a legal right to have his case considered by the Parole Board.
Stanley Burton J
Times 31-Dec-2002, [2002] EWHC 2805 (Admin), [2003] 1 WLR 1318
European Convention on Human Rights 5.4, Crime (Sentences) Act 1997, Mental Health Act 1983 74
England and Wales

Cited by:

  • Cited – P, Regina (on the Application of) v Secretary of State for the Home Department Admn 11-Dec-2003
    The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
    [2003] EWHC 2953 (Admin), Times 29-Dec-03

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Updated: 09 December 2020; Ref: scu.178702