S v Home Secretary [2003] EW

Prisoner – mental illness – revocation of licence


S, aged 52, had a history of offending going back some 30 years. In October 2001 he received an 18 month prison sentence on conviction for breach of a restraining order. In June 2002 he was automatically released on licence at the half-way stage of his sentence. He was admitted to hospital in August 2002 and, having refused to stay there, was had been detained under s3 MHA 1983. He was diagnosed with bipolar affective disorder and had ceased to comply with medication since his release from prison. At the request of his probation officer, S’s licence was revoked by the Home Secretary and S was recalled to prison. The reasons for the revocation were S’s failure to be of good behaviour, committing further offences by resuming the making of threatening phone calls and uttering threats to kill, not co-operating with medical staff and not complying with medication.


S absconded from hospital. He was arrested the next day and taken back to prison. He then sought judicial review of the Home Secretary’s decision. S succeeded at first instance on the basis that the Home Secretary had failed to consult his doctors. On appeal, one of the issues was whether a patient detained in hospital under s3 MHA could be deemed to be “at large”. The Home Secretary argued that “unlawfully at large” was the converse of “in lawful” custody” and that a patient detained under s3, whether in hospital or having absconded, was “at large”. The Court of Appeal agreed with that interpretation and went on to say that it was not necessary for a prisoner to know his licence had been revoked. Reason and policy strongly suggested that this must be so, otherwise there would be every incentive for an absconder to disappear altogether.


Prison and Probation Services were instructed to seek an order under s47 MHA at the same time as a revocation request is being dealt with, thus avoiding a need to recall the prisoner. A s47 order allows a prisoner to be transferred to hospital where s/he is deemed to be suffering from mental illness and supersedes an order made under s3.

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