Section 51(5): hospital order without conviction

This power to impose a hospital order applies to those who have been transferred from prison to hospital under s48(2)(a), i.e. ‘persons detained in a prison or remand centre, not being persons serving a sentence of imprisonment’ and not (b) ‘persons remanded in custody by a magistrates’ court’ or (c) civil or (d) immigration prisoners.

In R (Kenneally) v Snaresbrook Crown Court [2001] EWHC 968 (Admin)M, Pill LJ stated that: ‘To pass sentence, even a sentence one of the objects of which is to assist the defendant, without first convicting him is a drastic step, one that should be taken only in exceptional circumstances.’

The powers can be found in the following subsections:

(5) If (no direction or order having been given or made under subsection (3) or (4) above) it appears to the court having jurisdiction to try or otherwise deal with the detainee—

(a) that it is impracticable or inappropriate to bring the detainee before the court; and
(b) that the conditions set out in subsection (6) below are satisfied,

the court may make a hospital order (with or without a restriction order) in his case in his absence and, in the case of a person awaiting trial, without convicting him.

(6) A hospital order may be made in respect of a person under subsection (5) above if the court—

(a) is satisfied, on the written or oral evidence of at least two registered medical practitioners, that
(i) the detainee is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be detained in a hospital for medical treatment; and
(ii) appropriate medical treatment is available for him; and
(b) is of the opinion, after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make such an order.

The patient is subject to the Part 4 ‘Consent to Treatment’ provisions.


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