White v Governor HMP Pentonville
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Blake |
| Judgment Date | 12 March 2015 |
| Neutral Citation | [2015] EWHC 1886 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1119/2015 |
| Date | 12 March 2015 |
[2015] EWHC 1886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Blake
CO/1119/2015
Miss Maya Sikand (instructed by Needham Poulier) appeared on behalf of the Claimant
The Respondent did not appear and was not represented.
(As approved)
This is the judgment of the court on this application for a writ of Habeas Corpus by the applicant Mr Nathaniel White against the Governor of Her Majesty's Prison Pentonville. It came before the court on Tuesday 10 March having been filed on the previous Friday. The prison and the Ministry of Justice were served with copies of the application on Friday. When the matter came before us on Tuesday, we granted immediate and unconditional bail. We adjourned the application until today. We invited the prison authorities and the Ministry of Justice to appear and/or to submit a short skeleton argument. We did not require Mr White to attend but invited him to do so. He has done so. The prison authorities and the Ministry of Justice have not appeared and have not made any written submissions.
On 24 February 2015 this year the applicant was sentenced at the Hendon Magistrates' Court by District Judge (Magistrates' Court) Brennan to 16 weeks' imprisonment for a single assault contrary to section 39 of the Criminal Justice Act 1988. The assault was of a mental health nurse on 17 December 2014 at the hospital at which the applicant was then detained under section 3 of the Mental Health Act 1983, hereafter the 1983 Act. After his arrest, on each occasion on which he appeared before the Magistrates' Court, he was remanded in custody by magistrates or by a District Judge Magistrates' Court. He had therefore been remanded in custody by orders of the court between 19 December 2014 and 24 February 2015.
The issue concerns the treatment of time on remand between 16 January and 24 February 2015, a period in which the applicant was not held on remand in a prison but was held in a secure mental hospital purportedly pursuant to section 3 of the 1983 Act. He had served a period on remand in Her Majesty's Prison Wormwood Scrubs and Her Majesty's Prison Pentonville before 16 January which was credited as time served by him as part of his sentence. The question is whether the period after 16 January also counted. If so, he should have been entitled to be released on 24 February by reason of the time spent in custody. That seems to have been the understanding and the intention of the District Judge passing sentence on that day.
He was not released on that day. The position of the Ministry of Justice through Ms Helen Scott, the Ministry's Sentence Calculation Policy Lead and of the prison authorities is that there was no legal authority to credit the time he was detained in a hospital. Ms Scott stated she could not "sanction the prison allowing time in hospital under section 3 to count as remand time," see email dated 27 February to Joanne Chambers the applicant's solicitor whose witness statement dated 6 March is before the court and was filed with the application.
The position of the ministry and the prison appears to be that an admission to hospital under section 3 of the 1983 Act are, as a result of section 242(2)(c) of the Criminal Justice Act 2003, not treated as remands in custody for the purpose of section 240ZA and section 241 of the 2003 Act. They therefore do not automatically count as time served.
Section 240ZA, which was inserted into the 2003 Act by section 108 of the Legal Aid Sentencing and Punishment of Offenders's Act 2012, LASPO, effectively made the calculation of the release date an administrative and not a judicial function and pass responsibility for the calculation from the judiciary to the prison administration; see Archer v Governor of HMP Low Newton [2014] EWHC 3407 (Admin) per Tracey LJ at 8 and 10. But the prison authorities only have power to credit time for the periods for which a person was "remanded in custody" as defined as by section 242 or serving a "sentence of imprisonment" as defined by section 240(2)(1). For discussion of the problem that can arise for periods of detention that do not fall within those definitions, albeit in the context of imprisonment for civil contempt of court, see R (James) v HMP Birmingham [2015] EWCA Civ 58.
We turn to the facts of this case. The applicant was originally charged with four counts of common assault of different persons, all in the hospital. When he appeared before magistrates at the Hendon Magistrates' Court on 19 December, he pleaded not guilty to all charges. A trial was ordered at Willesden Magistrates' Court on 3 February. Miss Chambers' evidence is that the psychiatric team at the Hendon Magistrates' Court stated that efforts would be made to find an available bed at another secure psychiatric unit for the applicant and that, pending that, the court remanded him in custody. He was taken to HMP Wormwood Scrubs. His case was next listed before the Hendon Magistrates' Court on 23 December in order to ascertain whether a hospital bed had been found. It had not been and he was remanded in custody in his absence and remained at HMP Wormwood Scrubs. At some stage between 23 December 2014 and 14 January 2015, he was transferred to HMP Pentonville.
On 16 January 2015 the applicant was produced at Hendon Magistrates' Court pursuant to section 128 of the Magistrates' Court's Act 1980. He was not represented at that hearing because Miss Chambers wrongly understood that he had already been transferred to Chase Farm Hospital under section 48 of the 1983 Act and the court on his previous appearance had stated that, in that eventuality, there was no need for attendance.
On 16 January the applicant was again remanded in custody by the court. Despite the court's order, the applicant was taken from the cells at the Hendon Court by hospital staff to Chase Farm Hospital. Miss Chambers' evidence is that he had been assessed two days earlier by a doctor who had made a referral to Chase Farm Hospital but that this matter had not been raised before the court or sanctioned by it. Her evidence is that he was then detained in a secure ward at Chase Farm Hospital under section 3 of the 1983 Act. However, if he was already lawfully detained pursuant to an order of the Magistrates' Court which remanded him in custody, he could not have been the subject of administrative detention under section 3 of the 1983 Act as a result of an assessment by a doctor.
The custody staff at the Hendon Court should not have handed him over to hospital staff although they no doubt did so with the best will because it had been assumed on his earlier that appearance that what he needed at that stage was such an admission. He had after all been detained in the course of such an admission when the matters for which he was charged happened. But there are ample powers in the 1983 Act to ensure that people held in custody who need to be treated in a mental hospital can be transferred there and are transferred there. Sections 35 to 38 of the 1983 Act enable a court to remand a person to hospital for treatment or reports. Sections 35 and 36 apply to the position prior to conviction, sections 37 and 38 to the position after conviction.
Section 48 is of particular significance. Section 48(2) gives similar powers to the Secretary of State to transfer "other prisoners." These are defined as (a) persons detained in a prisoner remand centre not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection, (b) persons remanded in custody by a Magistrates' Court, (c) civil prisoners that is to say persons committed by a court to prison for a limited term … who are not persons falling to be dealt with under section 47 above, (d) persons detained under the Immigration Act 1971 …." See also section 47 which enables the Secretary of State to transfer a prisoner serving a sentence to a mental hospital.
It is, as we have stated, common ground that at that stage the applicant needed treatment in a mental hospital. What should have happened is that a transfer direction should have been sought and given under section 48(2)(b) of the 1983 Act. This would have provided lawful authority for the applicant to be transferred from the custody of the prison and/or the custody officers in the court to the mental hospital. Secondly, it would have ensured that the time spent in the mental hospital before sentence would count towards sentence because he would have been remanded, admitted or removed there under the relevant powers and thus would have fallen within the meaning of "remanded in custody" within the meaning of section 242(2) of the Criminal Justice Act 2003. This did not occur it seems because of an administrative error by custody staff.
The applicant's next appearance at court was on 3 February when he was brought to court by hospital staff for his trial. He was represented by counsel instructed by Miss Chambers' firm. She was under the impression that he had been properly transferred to hospital from prison pursuant to section 48 of the 1983 Act. She appears to have remained under that impression until those responsible for the applicant's custody at the Hendon Court on 24 February and the prison refused to release him on that day. It is not clear what the court believed to be the position, whether it was ignorant that he had been detained in hospital or whether it believed...
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