PRISONERS

Prisoner released on licence subsequently absconding from detention in mental hospital - Home Secretary wrong to revoke licence and recall to prison without consulting hospital doctors - Prison Service wrong to discount period at large from sentence

R (S) v Secretary of State for the Home Department: QBD (Mr Justice Maurice Kay): 5 November 2002

The claimant had been released from prison on a conditional licence.

As a result of bizarre behaviour, which was a breach of the conditions of his licence, he was subsequently detained in hospital for treatment under section 3 of the Mental Health Act 1983.

The secretary of state revoked his licence and recalled him to prison under section 39(2) of the Criminal Justice Act 1991.

On the next day the claimant, unaware of the recall decision, absconded from hospital without leave.

He was arrested and returned to prison.

The Prison Service reset the claimant's original release date on the ground that, on absconding, he had been unlawfully at large for 48 hours.

The claimant sought judicial review of the recall order on the grounds, among other things, that it had been taken without consideration of the section 3 order and that the state was obliged to protect the health of those detained.

Nicholas O'Brien (instructed by Galbraith Branley) for the claimant.

Steven Kovats (instructed by the Treasury Solicitor) for the Secretary of State.

Held, granting judicial review, that the normal process whereby a detention order under section 3 of the 1983 Act took precedence over a recall order under the 1991 Act, while not prescribed by statute, should not have been reversed without proper consultation with the hospital doctors treating the claimant; that once the secretary of state had been alerted to the claimant's need to be hospitalised to receive his medication, it had been incumbent upon him to consider a return to hospital; that, unless statute so provided, someone could not be unlawfully at large while he was ignorant of a decision revoking his licence; that section 50(4) of the 1983 Act was inapplicable and section 49(2) of the Prison Act 1952 could not be applied by analogy to deprive the claimant of his liberty; and that, accordingly, the order would be quashed and the claimant released from prison.