IR, R (on the application of) v Shetty & Anor

The designation of a convicted prisoner as a “technical lifer” is an administrative decision about post-conviction detention. It is not a sentencing exercise and is therefore not subject to Article 6 of the Convention on that basis.

Where the Secretary of State’s policy considers whether the sentencing process was affected by inadequate medical evidence, the relevant inquiry concerns the prisoner’s mental state at the time of the offence and whether the sentencing court could and would have made a hospital order. A later diagnosis or hospital transfer is insufficient without reliable evidence satisfying the policy’s requirements. A decision reached after considering the relevant material, and supported by adequate reasons, is lawful and rational.

The claimant had been convicted of manslaughter and sentenced to life imprisonment. He was later transferred to hospital under sections 47 and 49(1) of the Mental Health Act 1983. By 2003, clinicians agreed that he suffered from paranoid schizophrenia, although that diagnosis had not been made at sentencing.

He sought judicial review of the Secretary of State’s refusal to grant “technical lifer” status. He argued that the decision had to be made by a court under Article 6 and that the Secretary of State had failed to apply his own policy, which allowed consideration where subsequent evidence showed that the sentencing medical reports had inaccurately recorded the offender’s condition. The central issues were whether the designation was a sentencing exercise and whether the refusal was unlawful, irrational or inadequately reasoned.

1. Article 6. The application was dismissed. Designation as a technical lifer is a non-statutory status granted within the Secretary of State’s administrative discretion after conviction. It does not determine the criminal charge or impose the punishment. Unlike tariff-fixing, it is not a sentencing exercise. Article 6 therefore did not require the decision to be made by a court. The distinction was supported by the Strasbourg authorities on clemency and conditional release, including X v Austria and Aldrian v Austria.
2. Application of the policy. The policy required attention to the prisoner’s mental state at the time of the offence and to whether the sentencing process had been distorted by a specified deficiency, including inaccurate medical evidence. The relevant question was not the claimant’s current condition, but whether the sentencing judge had been prevented from making a hospital order that he could and would otherwise have made.
3. Medical evidence. Later hospital transfers and the current diagnosis of paranoid schizophrenia were of limited significance because they were consistent with the possibility, recognised in 1997, that mental illness might develop later. Dr Bullard’s changed view did not establish that the 1997 reports were inaccurate. Without similar evidence from Dr Ball or Dr Shapero, the statutory conditions requiring supporting evidence from two doctors remained unsatisfied. There was therefore no proper basis for believing that the sentencing decision could have been different.
4. Public-law review. The Secretary of State had considered the historical and up-to-date medical material as required by the policy. His conclusion was rational and his brief reasons were adequate. Speculation about the views of the other doctors did not satisfy the policy’s evidential requirements. The argument based on bed availability also failed because the sentencing judge had not refused a hospital order for that reason.
5. The injunction was discharged forthwith. The application was dismissed with costs. Permission to appeal was refused. The judge also ruled that he had no jurisdiction under CPR 52.15, or otherwise, to grant permission for the relevant appeal or extend the seven-day period for applying to the Court of Appeal.

This was a first-instance judicial review in the Administrative Court. The judgment refers to a related judgment in R (on the application of IR) v Shetty, [2003] EWHC 3022 (Admin), and to earlier interlocutory orders extending an injunction. The present application was dismissed, the injunction was discharged, and permission to appeal was refused.