View source for Section 51(5): hospital order without conviction

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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), 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:

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

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