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.
Judges:
Stanley Burton J
Citations:
Times 31-Dec-2002, [2002] EWHC 2805 (Admin), [2003] 1 WLR 1318
Statutes:
European Convention on Human Rights 5.4, Crime (Sentences) Act 1997, Mental Health Act 1983 74
Jurisdiction:
England and Wales
Citing:
Confirmed – Regina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .
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.
Lists of cited by and citing cases may be incomplete.
Human Rights, Prisons
Updated: 12 May 2022; Ref: scu.178702