R (EM and Others) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judgment Date | 13 March 2009 |
| Neutral Citation | [2009] EWHC 454 (Admin) |
| Docket Number | Case No: CO/5636/2006, CO/5640/2006, CO/6052/2006, CO/9154/2006, CO/9595/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 March 2009 |
[2009] EWHC 454 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr. Justice Burnett
Case No: CO/5636/2006, CO/5640/2006, CO/6052/2006, CO/9154/2006, CO/9595/2006
Richard Gordon QC and Paul Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair and Others) for the Claimants
Marie Demetriou (instructed by the Solicitor to the Department for Work and Pensions) for the Defendant
Hearing dates: 26 th January 2009
The Hon Mr Justice Burnett:
Introduction
The Claimants in these proceedings are persons who have been sentenced to a term of imprisonment who, through a number of different mechanisms, have been transferred to or located in psychiatric hospitals. By contrast with patients who are detained under section 3 of the Mental Health Act 1983 [“the 1983 Act”] or those detained following conviction pursuant to a hospital order under section 37 of the 1983 Act, transferred patients, who remain liable to detention because a prison sentence was imposed upon them, are ineligible to receive Income Support or State Pension Credit which are means tested benefits. That result is dictated by amendments to the regulations dealing with those benefits made by the Social Security (Hospital In-Patients) Regulations 2005, SI 2005/3360 [“the HIP Regulations”].
The Claim is brought by virtue of section 7 of the Human Rights Act 1998. The Claimants contend that the HIP Regulations are unlawful because they discriminate against them. They rely upon Article 1 of Protocol 1 to the Convention (the right to quiet enjoyment of possessions) taken together with Article 14 of the Convention. That argument is advanced by reference to the generality of the cases but, additionally, various Claimants argue that the group into which he falls is unlawfully discriminated against, even if all are not. Further the Claimants say that the provision of these benefits to others detained in psychiatric hospitals, but not to them, is irrational and violates the common law principle of equality. Finally, there is a discrete argument advanced on behalf of one Claimant founded in legitimate expectation.
The Seven Categories of Prisoner/Patient
Each of the Claimants was sentenced to serve a term of imprisonment. Most have received life sentences. The Annex to this judgment contains a short summary of the position of each Claimant. However, the circumstances in which each found himself detained in a psychiatric hospital are not identical. The overall number of prisoners located in psychiatric hospitals at any one time varies, but was estimated for the purposes of these proceedings at about 775. The Claimants fall into seven categories.
The first category is that of 'technical lifer'. This is an administrative category of prisoner which is now closed. There are 45 technical lifers in detention. No one has been added to that category since April 2005 and so the number will necessarily reduce over time. Only one of the Claimants before me is a technical lifer (KS). However, he has been receiving a non-means tested benefit despite the HIP Regulations. This technical status was conferred on life sentence prisoners in circumstances summarised by Munby J in R (IR) v Dr Shetty and the Home Secretary [2003] EWHC 3152 Admin:
“10. A “technical lifer” is a person who, although sentenced to life imprisonment, is treated by the Secretary of State after transfer to hospital as though he had been made the subject of a hospital order under section 37 of the Act and a restriction order under section 41 of the Act. It is a non-statutory status, based on an administrative process entirely within the discretion of the Secretary of State. I need not go into further detail: that can be found in Jones's 'Mental Health Act Manual' (ed 8) pp 284–285. It is, from the perspective of a person in the claimant's position, a desirable status because (a) he cannot in any circumstances be returned to prison, (b) he becomes entitled under Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to periodic reviews of the lawfulness of his detention even if his tariff period has not expired (see Van Droogenbroeck v Belgium (1982) 4 EHRR 443 and Benjamin and Wilson v United Kingdom (2002) 36 EHRR 1) and (c) in practice (see Benjamin and Wilson v United Kingdom paras [28], [30]) he will be entitled to his liberty if a Mental Health Review Tribunal so recommends.
11. The “technical lifer” policy as it is currently operated is described in a witness statement by Nigel Shackleford, Head of Caseworking in the Home Office Mental Health Unit:
“In assessing an application for “technical lifer” status, consideration is given to whether there is reason to believe the court's decision to impose a prison sentence rather than a hospital order has been made because the sentencing court was prevented from making a hospital order by reasons beyond its control, such as:
a) the unavailability of a suitable hospital bed;
b) the lack of proper clinical information given to the court;
c) medical reports which were prepared appear (in hindsight) not to have recorded accurately the patient's mental state at the time of the offence;
d) the offender, although mentally disordered, refused to allow a diminished responsibility defence and was as a result, convicted of murder (for which a life sentence is mandatory).
Where the Secretary of State considers that there is reason to believe that, but for these reasons, the sentencing judge would have imposed a hospital order, he will refer the matter to the trial judge and the Lord Chief Justice for consultation. Following that consultation, and taking the recommendations of the trial judge and the Lord Chief Justice into account, the Secretary of State may exercise his discretion to grant a person “technical lifer” status.
The Secretary of State does not refer every request for technical lifer status for judicial consideration. He does so only in applications where it is clear either that the Court was unable to make a hospital disposal, or there is clear subsequent evidence which might have altered the court's decision, and there are grounds to believe that the trial judge's decision would have been different had that evidence been taken into account. The Secretary of State may take the view, upon consideration of the relevant information, that there is no reason to suggest that the sentencing judge would have imposed a hospital order, in which case he does not consult the judiciary.”
In R v Beatty [2006] EWCA Crim 2359 at [53] Scott Baker LJ noted that the tariff date would no longer be taken into account in deciding whether a technical lifer should be released into the community and that he would be discharged on an absolute or conditional licence under the 1983 Act, rather than a life licence. The policy was ended from 2 April 2005 in response to a finding of a violation of Article 5(4) of the Convention by the Strasbourg Court in Benjamin and Wilson v United Kingdom (2003) 36 E.H.R.R. 1.
Technical lifers thus received a life sentence and began their sentences in prison but were subsequently transferred to a psychiatric hospital by the Secretary of State.
The second category comprises post-tariff lifers transferred by the Secretary of State to a psychiatric hospital. Whether post-tariff lifers were affected by the HIP Regulations at all was, and remains, a matter of some controversy. In R (RD and PM) v Secretary of State for Work and Pensions [2008] EWHC 2635 (Admin) I held that they were caught by the provisions of those regulations. The claimants in that case have applied to the Court of Appeal for permission to appeal. The arguments advanced in the cases currently before this Court were reserved and not explored in RD and PM.
The third category, into which only one claimant falls, is that of an 'automatic life sentence' prisoner. EM was given an 'automatic' life sentence under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and subsequently transferred by the Secretary of State to a psychiatric hospital. The provision has since been repealed save that it continues to operate in respect of convictions for offences committed before April 2005.
The fourth category comprises those sentenced to a mandatory life sentence for murder but who are subsequently transferred by the Secretary of State to a psychiatric hospital. Four of the claimants fall into this category. The particular focus in argument was on individuals who were sentenced to life imprisonment who might have satisfied the criteria for a hospital order, save that such an order was not available because section 1 of the Murder (Abolition of Death Penalty) Act 1965 requires a sentence of life imprisonment.
The fifth category contains those who were sentenced to imprisonment for life for offences other than murder. There is an overlap between the post-tariff lifers and the three categories of life sentence since the post-tariff lifers may be drawn from any of them.
The sixth category comprises those made subject to a hospital and limitation direction under sections 45A and 45B of the 1983 Act, introduced by amendment in 1997. These provisions empower a Crown Court, when imposing a prison sentence, to direct that the convicted person go to hospital immediately for treatment for mental illness. The essential difference between a disposal under these provisions and a hospital order with...
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