Divisional Court grants a writ of habeas corpus against prison / Ministry of Justice for sentence miscalculation

Monday 16 March 2015

On Thursday 12 March 2015, the High Court* agreed to release a male prisoner from Pentonville prison following a sentence imposed by Hendon Magistrates’ Court. The prisoner was represented by his barrister, Maya Sikand of Garden Court Chambers.

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He had been remanded in custody by the magistrates’ court since his first appearance there following his arrest. However, he was on one occasion unlawfully removed from the cells at court to hospital, purportedly under section 3 of the Mental Health Act (MHA) 1983. Neither the court nor his solicitor were informed about his removal to hospital from court.

Subsequently his solicitor assumed he had been lawfully transferred from prison to hospital under s. 48 of the MHA 1983, and that all time spent in custody (including the time spent in hospital) would have counted as part of his sentence within the meaning of s. 240ZA and s.242(2) (c) of the Criminal Justice (‘CJA’) Act 2003.  The Ministry of Justice Sentence Calculation Unit refused to count the 39 days he spent in hospital against his sentence as they said there was no legal basis for doing so (as he had been “transferred” under section 3 of the MHA and not s.48).

Maya Sikand successfully argued that the sentence calculation undertaken by the Ministry of Justice was wrong in law as the custody staff at court had no legal authority to hand him over to the hospital and the order of a court of competent jurisdiction simply could not be superseded by such an administrative error.  Consequently the prisoner was released and his time spent in hospital was ordered to be counted as part of his sentence.

Maya Sikand is a member of the public law and prison law team. She was instructed by Joanne Chambers of Needham Poulier

*The Divisional Court (Beatson LJ, Blake J) granted a writ of habeas corpus.

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