Thompson, R (on the application of) v Secretary of State for the Home Department

A Secretary of State may adopt a policy of imposing restriction directions when transferring sentenced prisoners to hospital, even where the prisoner presents no risk of serious harm. The statutory function differs from the sentencing court’s function when making a hospital order and restriction order. The policy may legitimately preserve the criminal sentence and prevent discharge substantially earlier than the statutory release date. A decision applying that policy ordinarily has an evident reason where the policy is reasonable and the case falls within it. An erroneous release-date notification does not create a legitimate expectation where the release date is fixed by statute and the error originated with an official rather than the sentencing court.

The claimant, who was serving imprisonment in default of payment of a confiscation order, was transferred to hospital under section 47 of the Mental Health Act 1983 and made subject to a restriction direction under section 49. The Secretary of State applied a policy of generally imposing such directions unless transfer occurred shortly before the earliest release date. The claimant challenged the policy, the adequacy of the reasons for retaining the restriction direction, and an erroneous Home Office notification stating that she would be released earlier than the statutory date. The central issues were whether the policy was unlawful, whether reasons were required beyond reference to the policy, and whether the notification created a legitimate expectation.

1. Policy challenge dismissed. The Secretary of State’s policy was lawful. A transfer under section 47 does not place a sentenced prisoner in the same position as an offender at the point of sentencing. The Secretary of State is not exercising the sentencing court’s function under section 37. The policy could properly ensure that imprisonment was not wholly overridden by a supervening medical consideration and that the prisoner did not regain liberty substantially earlier than the date required by statute. The absence of an express public-protection criterion in section 49 was significant. The claimant’s reliance on the public-protection rationale of section 41 was therefore misplaced. The challenge under the principle in Padfield v MAFF failed.
2. The late reliance on article 8 of the European Convention on Human Rights and Fundamental Freedoms did not assist the claimant.
3. The reasons challenge failed. Since the policy was reasonable and justified, and the claimant fell within it, the policy itself supplied the evident reason for retaining the restriction direction.
4. No legitimate expectation arose from the erroneous release-date notification. The statutory release date governed a lawfully imposed sentence. The decision in R v Governor of HMP Pentonville ex parte Lynn was distinguishable because the expectation there had materially originated in an utterance of the sentencing court, whereas the present expectation originated in an official’s mistake.
5. The application for judicial review was dismissed. Permission to appeal was refused; any appeal would have to be made to the Court of Appeal.

First-instance judicial review in the Administrative Court. The application was dismissed and permission to appeal was refused.