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

A transfer from prison to hospital under section 47 of the Mental Health Act 1983 does not bring a custodial sentence to an end. The sentence continues to run during detention in hospital. Consequently, the prisoner remains subject to the statutory licence regime, including licence conditions and recall to prison for breach. Section 47(3), giving a transfer direction the same effect as a hospital order, concerns the effect of hospital detention and does not engage the sentencing restriction in section 37(8). The specific provisions governing restriction directions do not imply that no power exists in an unrestricted transfer case. Mental Health Act after-care duties may coexist with criminal justice licence sanctions.

The claimant had been sentenced to imprisonment for robbery, with a consecutive period for an earlier theft sentence. After release on licence and recall, he was due to be released again on licence. Two days before that date he was transferred from prison to hospital under section 47 of the Mental Health Act 1983. No restriction direction was made. Following his discharge from hospital, he was recalled to prison for an alleged breach of licence conditions arising during the transfer period.

He sought judicial review, arguing that the transfer had ended his prison sentence and removed the power to impose licence conditions or recall him. The central issue was whether the sentence and associated criminal justice powers continued despite the absence of a restriction direction.

1. The claim was dismissed. The claimant’s recall to prison was lawful.

2. Section 37(8) of the Mental Health Act 1983, which prevents a sentencing court from imposing imprisonment together with a hospital order, concerns the court’s sentencing powers. It does not apply to an executive transfer under section 47.

3. Section 47(3), providing that a transfer direction has the same effect as a hospital order, principally engages the hospital-detention consequences of section 40. It does not discharge or suspend the existing prison sentence.

4. The sentence therefore continues to run while the prisoner is detained in hospital. The court regarded this conclusion as supported by R v Secretary of State for the Home Department, ex parte H & Others [1994] 3 WLR 1110, where the Court of Appeal treated time spent in hospital after transfer as counting towards a life sentence tariff.

5. The specific provisions in sections 50 and 74 concerning restriction directions do not establish that a transfer without such a direction ends the sentence. Those provisions address the additional consequences of a restriction direction, including the operation of the Mental Health Act safeguards and the return of a patient to prison.

6. The continuing sentence preserves the power to impose the ordinary criminal justice licence conditions and to recall the prisoner for breach. The after-care regime under section 117 may operate alongside those sanctions and is not inconsistent with them.

The court recognised ambiguity in the interaction between the Mental Health Act and criminal justice legislation, but concluded that the construction preserving the sentence and recall power was the correct one.