Neutral Citation Number: [2009] EWHC 454 (Admin)

Case No: CO/9154/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13th March 2009

Before:

THE HON MR. JUSTICE BURNETT
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Between:

	Regina (on the application of EM AND OTHERS)	Claimants	
	- and -		
	THE SECRETARY OF STATE FOR WORK AND PENSIONS	

Defendant	
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(Transcript of the Handed Down Judgment of
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Richard Gordon QC and Paul Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair and Others) for the Claimants
Marie Demetriou (instructed by the Solicitor to the Department for Work and Pensions) for the Defendant 

Hearing dates: 26th January 2009
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Judgment
The Hon Mr Justice Burnett: 
Introduction
1.	The Claimants in these proceedings are persons who have been sentenced to a term of imprisonment who, through a number of different mechanisms, have been transferred to or located in psychiatric hospitals. By contrast with patients who are detained under section 3 of the Mental Health Act 1983 [“the 1983 Act”] or those detained following conviction pursuant to a hospital order under section 37 of the 1983 Act, transferred patients, who remain liable to detention because a prison sentence was imposed upon them, are ineligible to receive Income Support or State Pension Credit which are means tested benefits. That result is dictated by amendments to the regulations dealing with those benefits made by the Social Security (Hospital In-Patients) Regulations 2005, SI 2005/3360 [“the HIP Regulations”]. 
2.	The Claim is brought by virtue of section 7 of the Human Rights Act 1998. The Claimants contend that the HIP Regulations are unlawful because they discriminate against them. They rely upon Article 1 of Protocol 1 to the Convention (the right to quiet enjoyment of possessions) taken together with Article 14 of the Convention. That argument is advanced by reference to the generality of the cases but, additionally, various Claimants argue that the group into which he falls is unlawfully discriminated against, even if all are not. Further the Claimants say that the provision of these benefits to others detained in psychiatric hospitals, but not to them, is irrational and violates the common law principle of equality. Finally, there is a discrete argument advanced on behalf of one Claimant founded in legitimate expectation.
The Seven Categories of Prisoner/Patient
3.	Each of the Claimants was sentenced to serve a term of imprisonment. Most have received life sentences. The Annex to this judgment contains a short summary of the position of each Claimant. However, the circumstances in which each found himself detained in a psychiatric hospital are not identical. The overall number of prisoners located in psychiatric hospitals at any one time varies, but was estimated for the purposes of these proceedings at about 775. The Claimants fall into seven categories.
4.	The first category is that of ‘technical lifer’. This is an administrative category of prisoner which is now closed. There are 45 technical lifers in detention. No one has been added to that category since April 2005 and so the number will necessarily reduce over time. Only one of the Claimants before me is a technical lifer (KS). However, he has been receiving a non-means tested benefit despite the HIP Regulations. This technical status was conferred on life sentence prisoners in circumstances summarised by Munby J in R (IR) v Dr Shetty and the Home Secretary [2003] EWHC 3152 Admin:
“10.	A "technical lifer" is a person who, although sentenced to life imprisonment, is treated by the Secretary of State after transfer to hospital as though he had been made the subject of a hospital order under section 37 of the Act and a restriction order under section 41 of the Act. It is a non-statutory status, based on an administrative process entirely within the discretion of the Secretary of State. I need not go into further detail: that can be found in Jones's 'Mental Health Act Manual' (ed 8) pp 284-285. It is, from the perspective of a person in the claimant's position, a desirable status because (a) he cannot in any circumstances be returned to prison, (b) he becomes entitled under Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to periodic reviews of the lawfulness of his detention even if his tariff period has not expired (see Van Droogenbroeck v Belgium (1982) 4 EHRR 443 and Benjamin and Wilson v United Kingdom (2002) 36 EHRR 1) and (c) in practice (see Benjamin and Wilson v United Kingdom paras [28], [30]) he will be entitled to his liberty if a Mental Health Review Tribunal so recommends. 
11.	The "technical lifer" policy as it is currently operated is described in a witness statement by Nigel Shackleford, Head of Caseworking in the Home Office Mental Health Unit: 
"In assessing an application for "technical lifer" status, consideration is given to whether there is reason to believe the court's decision to impose a prison sentence rather than a hospital order has been made because the sentencing court was prevented from making a hospital order by reasons beyond its control, such as:
a) the unavailability of a suitable hospital bed;
b) the lack of proper clinical information given to the court;
c) medical reports which were prepared appear (in hindsight) not to have recorded accurately the patient's mental state at the time of the offence;
d) the offender, although mentally disordered, refused to allow a diminished responsibility defence and was as a result, convicted of murder (for which a life sentence is mandatory).
Where the Secretary of State considers that there is reason to believe that, but for these reasons, the sentencing judge would have imposed a hospital order, he will refer the matter to the trial judge and the Lord Chief Justice for consultation. Following that consultation, and taking the recommendations of the trial judge and the Lord Chief Justice into account, the Secretary of State may exercise his discretion to grant a person "technical lifer" status.
The Secretary of State does not refer every request for technical lifer status for judicial consideration. He does so only in applications where it is clear either that the Court was unable to make a hospital disposal, or there is clear subsequent evidence which might have altered the court's decision, and there are grounds to believe that the trial judge's decision would have been different had that evidence been taken into account. The Secretary of State may take the view, upon consideration of the relevant information, that there is no reason to suggest that the sentencing judge would have imposed a hospital order, in which case he does not consult the judiciary.”	
5.	In R v Beatty [2006] EWCA Crim 2359 at [53] Scott Baker LJ noted that the tariff date would no longer be taken into account in deciding whether a technical lifer should be released into the community and that he would be discharged on an absolute or conditional licence under the 1983 Act, rather than a life licence. The policy was ended from 2 April 2005 in response to a finding of a violation of Article 5(4) of the Convention by the Strasbourg Court in Benjamin and Wilson v United Kingdom  (2003) 36 E.H.R.R. 1.
6.	Technical lifers thus received a life sentence and began their sentences in prison but were subsequently transferred to a psychiatric hospital by the Secretary of State.
7.	The second category comprises post-tariff lifers transferred by the Secretary of State to a psychiatric hospital. Whether post-tariff lifers were affected by the HIP Regulations at all was, and remains, a matter of some controversy. In R (RD and PM) v Secretary of State for Work and Pensions [2008] EWHC 2635 (Admin) I held that they were caught by the provisions of those regulations. The claimants in that case have applied to the Court of Appeal for permission to appeal. The arguments advanced in the cases currently before this Court were reserved and not explored in RD and PM.
8.	The third category, into which only one claimant falls, is that of an ‘automatic life sentence’ prisoner. EM was given an ‘automatic’ life sentence under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and subsequently transferred by the Secretary of State to a psychiatric hospital. The provision has since been repealed save that it continues to operate in respect of convictions for offences committed before April 2005. 
9.	The fourth category comprises those sentenced to a mandatory life sentence for murder but who are subsequently transferred by the Secretary of State to a psychiatric hospital.  Four of the claimants fall into this category. The particular focus in argument was on individuals who were sentenced to life imprisonment who might have satisfied the criteria for a hospital order, save that such an order was not available because section 1 of the Murder (Abolition of Death Penalty) Act 1965 requires a sentence of life imprisonment.
10.	The fifth category contains those who were sentenced to imprisonment for life for offences other than murder. There is an overlap between the post-tariff lifers and the three categories of life sentence since the post-tariff lifers may be drawn from any of them.
11.	The sixth category comprises those made subject to a hospital and limitation direction under sections 45A and 45B of the 1983 Act, introduced by amendment in 1997. These provisions empower a Crown Court, when imposing a prison sentence, to direct that the convicted person go to hospital immediately for treatment for mental illness. The essential difference between a disposal under these provisions and a hospital order with restriction under sections 37 and 41 of the 1983 Act is that when the criteria for detention in hospital are no longer met, the patient will be transferred to prison to serve out his sentence, with the time in hospital counting towards his sentence. 
12.	The seventh category comprises those sentenced to determinate sentences.
Benefits Regime
13.	This application for judicial review does not call for an analysis of the detail of the benefits system before or after the introduction of the HIP Regulations, or for the construction of any of the statutory provisions. That is because the parties are agreed upon its practical impact on the different categories of patient/prisoners which I have identified. The starting point is the summary I attempted in RD and RM:
“11.	As is well known, there are two types of welfare benefit. The first comprises means-tested benefits which are always non-contributory. The second encompasses non means-tested benefits which may be either contributory or non-contributory. 
12.	The relevant principal means-tested benefits are Income Support, which is generally available to unemployed adults between the ages of 18 and 60, and State Pension Credit which is available to adults over the age of 60. 
13.	With some limited exceptions, convicted prisoners who have been sentenced to a term of imprisonment are not entitled to receive any benefits whilst they are in prison. The position is different for prisoners on remand. In general terms, non-means tested benefits are suspended during the period of detention on remand pending trial. If a defendant is then acquitted or a non-custodial sentence is imposed, the arrears are paid. Remand prisoners are entitled, however, to receive relevant means-tested benefits, that is Income Support or Pension Credit, for a period of up to 52 weeks. Thereafter they receive nothing. Remand prisoners are also entitled to Housing Benefit if they satisfy the statutory criteria. 
14.	The position governing the entitlement of hospital patients to benefits underwent a significant change on 10 April 2006 when the HIP Regulations entered into force. 
15.	Prior to the introduction of those Regulations patients detained under the 1983 Act arising out of criminal proceedings were disqualified from receiving most non-means tested benefits as persons detained in legal custody. That was the effect of Section 113(1) of the Social Security Contributions and Benefits Act 1992 subject to the exceptions contained in the Social Security (General Benefit) Regulations 1982 (SI 1982 No 1408) ["the 1982 General Benefit Regulations"]. Notably, under Regulation 2(3) of those Regulations, a person liable to be detained in a hospital who was suffering from mental disorder was able to obtain non-means tested benefits. The people who benefited from that provision included those detained under section 37 of the 1983 Act. However, those Regulations expressly excluded patients subject to a sentence of imprisonment who were then transferred to hospital under Sections 47 and 49 of the 1983 Act. 
16.	Whilst that was the general position, patients transferred from prison under Section 47 of the 1983 Act could become eligible for non means-tested benefits if they remained detained in mental hospital after the date at which their underlying prison sentence would have been expected to come to an end. That was provided by Regulation 2(4) of the 1982 Regulations … 
17 …
18.	Prior to the 10 April 2006, the position governing means-tested benefits was as follows. All hospital in-patients, including those detained under the 1983 Act, were entitled to Income Support or Pension Credit. Those detained under the 1983 Act included transferred prisoners. There were some differences however in the treatment of ordinary patients and transferred prisoners. Ordinary patients received the means-tested benefits for 52 weeks but then the payment was down-rated to what has been described as the "hospital pocket money rate". Its proper description was the personal expenses rate. Transferred patients were paid the "hospital pocket money rate" from the moment of their transfer. At the time of the change Income Support was £56.20 a week and the hospital pocket money rate was £16.40. Although the hospital pocket money rate did not equate precisely with the amount of money that a prisoner could earn whilst in prison, there was a broad equivalence. 
19.	After 10 April 2006, the HIP Regulations introduced a number of changes to the treatment for benefits purposes of hospital in-patients. The hospital pocket money rate was abolished. Two classes of in-patient were affected by that. First, those who had been in-patients for more than 52 weeks and secondly, prisoners on transfer to hospital. The general impact of this change for ordinary patients was that they received the full Income Support or Pension Credit. The position for transferred prisoners was that they no longer received the hospital pocket money rate ... However, such patients continued to receive a sum equivalent to the old hospital pocket money rate under discretionary powers given to the Secretary of State for Health under section 122 of the 1983 Act. The rationale advanced by the Secretary of State for that position is that whilst the Government considers it is wrong for serving prisoners to receive welfare benefits, it is nonetheless appropriate to provide transferred prisoners with a modest sum for personal expenses whilst they are in a mental hospital. The detail underlying that policy is set out in a witness statement of Paul Mackrell made on behalf of the Secretary of State in different proceedings (Case No CO/5636/06) but which was sent to me by the Claimants, without objection from the Defendant, a week after the argument in this case was completed.”
14.	The witness statement there referred to is the witness statement in these proceedings. I should record that the information put before the Court indicates that some of the Claimants are not receiving the full hospital pocket money rate under the discretionary powers. The issue was not explored in evidence nor did any of the legal submissions turn on the suggested disparity in those cases.
15.	Two further points should be made. First, prior to 10 April 2006 patients detained pursuant to a direction under section 45A of the 1983 Act received the same means tested and non-means tested benefits as those detained pursuant to section 3 or section 37. After 10 April 2006 they were treated for benefits purposes in the same way as transferred prisoners. Secondly, the prohibition against payment of benefits to a patient transferred from prison, or subject to a section 45A sentence, is lifted when he reaches the time when he would be entitled to be released from prison. For those sentenced to determinate sentences, the calculation of that date is straightforward. It was the position regarding those sentenced to life terms which was in issue in RD and RM.
The Transfer Powers
16.	So far as material, section 47 of the 1983 Act provides:
“Removal to hospital of persons serving sentences of imprisonment, etc.
(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners —
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; and a direction under this section shall be known as “a transfer direction”  
(2) A transfer direction shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is given unless within that period the person with respect to whom it was given has been received into the hospital specified in the direction. 
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.”
	Whilst subsection (3) provides that a transfer direction results in the prisoner being treated as if he were the subject of a hospital order, the Secretary of State may impose a restriction on his discharge from hospital pursuant to section 49, which operates in much the same way as a restriction order made under section 41 when a hospital order is made by a Court. Further provision in respect of transfer prisoners is made by section 50: 
“(1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person’s sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may — 
(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or
(b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,
and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect. 
(2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect on the expiration of the sentence. 
(3) Subject to subsection (4) below, references in this section to the expiration of a person’s sentence are references to the expiration of the period during which he would have been liable to be detained in a prison or other institution if the transfer direction had not been given. 
(4) For the purposes of section 49(2) of the Prison Act 1952 (which provides for discounting from the sentences of certain prisoners periods while they are unlawfully at large) a patient who, having been transferred in pursuance of a transfer direction from any such institution as is referred to in that section, is at large in circumstances in which he is liable to be taken into custody under any provision of this Act, shall be treated as unlawfully at large and absent from that institution. 
(5) The preceding provisions of this section shall have effect as if — 
(a) the reference in subsection (1) to a transfer direction and a restriction direction having been given in respect of a person serving a sentence of imprisonment included a reference to a hospital direction and a limitation direction having been given in respect of a person sentenced to imprisonment; 
(b) the reference in subsection (2) to a restriction direction included a reference to a limitation direction; and  
(c) references in subsections (3) and (4) to a transfer direction included references to a hospital direction.”
	
The effect of these provisions (taken also with section 74) is to ensure that when a patient, who has been transferred under sections 47 and 49 or detained pursuant to section 45A of the 1983 Act, recovers to the extent that his detention for treatment in a psychiatric hospital is no longer indicated, he is liable to be returned to prison to serve out the remainder of his sentence. 
17.	The time spent in a mental hospital in consequence of a transfer under these powers counts towards the determinate part of any sentence, including the minimum term to be served within a life sentence or an indeterminate sentence. 
The Secretary of State’s Reasons for Changing Entitlement to Benefits
18.	The Government improved the position for patients detained pursuant to section 37 of the 1983 Act because it was persuaded by MIND, the mental health charity, that it was appropriate to provide such patients with full means-tested benefits, in particular, because it would have a positive therapeutic effect. Its approach to those sentenced to terms of imprisonment but who were nonetheless immediately transferred to hospital (section 45A) or subsequently transferred (sections 47 and 49), is explained in the witness statement of Paul Laurence Mackrell dated 12 January 2007 and was also explained by the Secretary of State at the time the HIP Regulations were laid in a series of memoranda and notes. Mr Mackrell explained that prisoners had been denied benefits for 100 years for two overarching reasons. The first was described as ‘double provision’, that is, because prisoners are maintained at considerable public expense, a second charge to the public purse by providing benefits should not be made. Secondly, he explained that a consistent view of successive governments, reflecting in their opinion the views of society at large, was that during a term of imprisonment, benefits otherwise payable should be forfeited.   It was an aspect of punishment. He went on to accept that a transferred prisoner is in some respects different from an ordinary prisoner. Nonetheless he suggested that they were analogous for social security benefits’ purposes:
“A person who has been sentenced to a term of imprisonment and then detained in a psychiatric hospital remains a prisoner for the duration of the term of imprisonment he would otherwise be serving and the Government considers that his treatment for social security purposes should necessarily reflect this fact.”
He added that the fact that a prisoner transferred to hospital for treatment for a mental disorder remains a prisoner is reflected in the Secretary of State remaining responsible for him. That was a reference to section 50 of the 1983 Act. He noted that whilst a prisoner is in hospital pursuant to section 45A or section 47, the time spent there in custody continues to count towards his sentence; the date of release remains the same, just as it does if a prisoner is transferred from prison to an ordinary hospital for treatment. He concluded:
“The Government is therefore of the opinion that the status of section 45A and section 47 patients in mental health hospital is analogous (though not identical) to that of prisoners as far as financial provision is concerned.”

19.	The explanatory note to the HIP Regulations indicate that the Secretary of State’s purpose was to ‘disqualify claimants from receiving certain contributory and non-contributory benefits if they are sentenced to a period of imprisonment and during that period they are detained in hospital under mental health legislation.’ In a memorandum provided to the Social Security Advisory Committee when the HIP Regulations were in draft, the  Secretary of State said this:
“Aligning the rules for prisoners
6. The current benefit rules for people transferred from prison to a mental hospital are inconsistent. For the contributory benefits, the General Benefit Regulations disqualify such a person from receipt of benefit for the minimum duration of the sentence. However, no similar provision currently exists for the income-related benefits which can lead to the anomalous situation whereby a transferred prisoner is disqualified for State Pension purposes but remains eligible for Pension Credit. The removal of the 52 week hospital downrating puts this disparity in sharp relief. In order to remove the anomaly the Secretary of State proposes to align the rules across all benefits so as to provide that no benefit is payable for the minimum duration of the prison sentence regardless of the fact that the person has been transferred to a mental hospital. It is also proposed that this rule will apply in the case of people who are sentenced to a term of imprisonment but go straight to a mental hospital.
			…
18. There are only about 4 or 5 cases under section 45A each year, but in principle we believe that, for benefit purposes, they should have the status of prisoners whilst undergoing hospital treatment and should not receive benefit. We would stress that this is entirely different from what are termed hospital orders. These are made under Section 37 of the Mental Health Act. This is where the court finds a person guilty of a criminal offence but issues an order directing them to receive treatment in hospital. Such an order is an effective outcome as far as court proceedings are concerned. It is not possible to disqualify such an individual for a notional period for which they could have been imprisoned, because what the court would have done had they not determined that a hospital order was appropriate, will forever be unknowable. A court has many non-custodial options available to it which it could have chosen in these circumstances. The policy is only to apply the disqualification rule where there is a definite prison sentence against which to measure it."
Very similar statements were made in a memorandum put before Parliament when the regulations were laid.
Discrimination 
20.	By the end of the argument in this case the parties agreed the essential question for the purposes of discrimination under Article 14 of the Convention:
“Is there enough of a relevant difference between X and Y to justify different treatment?”

That formulation comes from paragraph [31] of Lord Hoffmann’s speech in R (Carson) v Work and Pensions Secretary [2006] 1 AC 173. The groups are section 37 and civil detainees in psychiatric hospitals, on the one hand (X), and sentenced prisoners who are transferred to a psychiatric hospital or go there pursuant to a section 45A direction, on the other (Y). Lord Hoffmann’s formulation was consistent with the approach of Lord Nicholls, who at paragraph [3] in the same case indicated that:
“the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

21.	It was common ground between the parties that entitlement to state benefits fell within the ambit of Article 1 of Protocol 1 to the Convention, following the decision of the House of Lords in R (RJM) v Department of Work and Pensions [2008] 3 WLR 1023. It was also common ground that persons sentenced to terms of imprisonment did not fall within any of the categories (sex, race etc.) identified in Article 14 but considerable ink was spilt, and argument developed, on whether the Claimants had ‘other status’ which qualified them for protection. However, that point in due course evaporated because the Secretary of State was prepared to accept, for the sake of argument but without concession, that the claimants did enjoy another status for the purposes of Article 14. The Secretary of State reserved his position on this point should it become necessary to rely upon it elsewhere.  It was also common ground between the parties that, assuming the differential treatment in this case is on a proscribed ground, it is not one of those which call for ‘very weighty reasons’ in justification, such as race, colour or ethnic origin (see, for example AL (Serbia) v Home Office [2008] 1 WLR 1434 per Baroness Hale at [29] to [35]). The Secretary of State submitted that because the subject matter of the policy in question (reflected in the HIP Regulations) concerned social welfare payments, the Strasbourg Court would afford the State a particularly wide margin of appreciation and thus, in domestic terms, the Court should approach the review with a similarly light touch to reflect the nature of the discretionary area of judgment. Reliance was placed on Lord Neuberger’s observations in RJM at paragraphs [54] to [57]. I am not able to accept that simple analogy because the claimants in this case are prisoners and patients suffering from serious mental illness. Whilst justification in this area does not call for the very weighty reasons referred to by Lady Hale, in my judgment the weight of the justification needed in this context is more than the Strasbourg Court would look for in a case concerned with the payment of ordinary social welfare benefits.
22.	As Mr Gordon QC, who appeared for the Claimants, recognised in his reply, the issue for the purposes of Article 14 when looking at the generality of prisoners who are patients, is whether they are sufficiently different from section 37 and civil detainees to justify the difference in entitlement to benefits.   He described the claimants collectively, to include those subject to a section 45A direction, as ‘transferred patients’.  Mr Gordon submitted that the transferred patients were relevantly similar to section 37/civil detainees because they are recognised as suffering from a mental illness of sufficient seriousness to require compulsory medical treatment. He submitted that to treat transferred patients in the same way for benefits purposes as prisoners was to determine that they should be punished whilst they were in hospital. That is inappropriate, indeed inhuman, submitted Mr Gordon. He argued that it was never appropriate to punish an individual suffering from mental illness of this sort. Section 37 Hospital Orders contain no element of punishment and the common law has for centuries recognised that it is wrong to punish someone in that condition, even if he was free from mental illness at the time that a crime was committed. 
23.	He also approached the issue through the concept of culpability. To the extent that the Secretary of State was suggesting that the difference in treatment was justified by treating one group as culpable for their crimes and the other as not, that too was wrong because defendants in criminal proceedings made the subject of a section 37 Hospital Order could very well be culpable for their crimes. Although some detained under section 37 may have been found not fit to plead or not guilty by reason of insanity, most would have been convicted of the underlying crime. That suggests some culpability. Others, whilst culpable at the time of the offence, may afterwards have developed mental illness or suffered an exacerbation which justifies the order.
24.	Mr Gordon encapsulated his submission in the following proposition:
“Unless (which it cannot) a rationale can be advanced for punishing patients  whilst they are being compulsorily detained and treated in hospital the Secretary of State’s case must, therefore, fail.” (original emphasis)
25.	Mr Gordon accepted that in focusing on the question of ‘punishment’, and submitting that during a period when punishment was not the object of detention benefits should be paid, an inconvenient logical possibility would arise. Any life sentence prisoner whose tariff has expired or any prisoner subject to an indeterminate sentence for public protection whose minimum term has been served remains in prison for reasons of public safety rather than as a punishment. So they too might have as strong a case for receiving benefits if the rationale for their denial is that the person in question is no longer, or not for the moment, being punished.
26.	In my judgment, however, in developing arguments by reference to punishment and culpability, the claimants have sought to over-refine the essence of the Secretary of State’s policy. It is true that the statement of Mr Mackrell and Miss Demetirou’s skeleton argument refer to both ‘punishment’ and ‘culpability’. But the simple point being made is that transferred patients have all been sentenced to a term of imprisonment by a Court, by contrast with those made subject to a hospital order or those who are civil detainees. That means that in such cases a Court has determined a minimum period of loss of liberty in respect of each of the categories of transferred patient represented by the claimants, amongst whom there are prisoners serving life sentences, determinate sentences and who are subject to section 45A directions. To that extent the prisoners have been found to be culpable for their crimes. In cases of non-determinate sentences, the Court has additionally decided that the loss of liberty should endure until it is safe to release the person concerned back into society. The Secretary of State has decided as a matter of policy that whilst a prisoner is deprived of his liberty in consequence of a sentence of imprisonment, he shall be treated for benefits purposes in exactly the same way wherever he happens to be detained. 
27.	Thus, for the purposes of benefits it matters not whether the detainee is in a penal establishment, a psychiatric hospital or an ordinary hospital. A prisoner may be transferred to an ordinary hospital if he needs treatment for a physical illness, condition or injury. The question is not whether he is being punished at any given moment but whether he remains subject to the sentence of the Court. Were it not for the mental disorder, the person concerned would be in prison serving the sentence imposed by the Court.
28.	The Secretary of State advanced a number of supporting reasons to justify the policy underlying the HIP Regulations:
i)	They remove a paradox in earlier legislation whereby patients in the position of the Claimants were eligible for income-related benefits but not eligible for non-income-related benefits. This is referred to by Mr Mackrell in paragraph 25 of his statement; 
ii)	They promote administrative efficiency and save costs, premised on the assumption that rather than receiving full income support or pension credit, transferred prisoners would continue to be paid the pocket money rate through the discretionary mechanism already referred to. 
iii)	They enhance public confidence in the fairness of the benefits system, the point being that to pay benefits to transferred prisoners would undermine public confidence in the essential even-handedness of the social security system; 
iv)	They contain rules which are clear and easy to apply and thereby promote legal certainty.  Any failure of the HIP Regulations to take account of particular individual circumstances is justified by the benefit of having “bright line” rules. In support of this proposition the Secretary of State relies upon Carson at [41] per Lord Hoffmann, and [56] and [91] per Lord Walker. Lord Hoffmann was dealing with a submission that a difference in treatment for social security purposes based on the 25th birthday was arbitrary because there was no relevant difference between a person on the day before and the day after reaching that milestone. He said:
“That is true, but a line has to be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, a person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and the need for a workable rule. But your Lordships are likely to reach what I consider to be the obvious answer without having to resort to such formal reasoning.”
Lord Walker’s example, drawn for United States jurisprudence concerned a mandatory retirement age of 50. He considered that demarcation lines have to be bright lines.
29.	I do not consider that these additional reasons add anything to the central argument concerning transferred patients as a composite group. The paradox of the earlier legislative regime might just as easily have been removed by giving entitlement to non-means tested benefits to transferred patients and says nothing about whether the differential treatment is justified. The administrative efficiency point is concerned with the pocket money rate. It is true that the Secretary of State has sought to substitute the pocket money rate that was available to transferred patients with discretionary funds which are designed broadly to provide the same level of financial support. However, it does not touch upon the question whether the difference in treatment between transferred patients and civil/section 37 detainees is justified. The public confidence point is simply a reflection of the central argument advanced by the Secretary of State. The Secretary of State’s position is that the difference of treatment is justified because the members of one group have been sentenced to terms of imprisonment, whilst the others have not. He suggests that his view reflects the public view.
30.	 Mr Gordon submits that public support for a view which is not sufficient to provide a justification for the purposes of Article 14, adds nothing. Public opinion does not make lawful what is otherwise unlawful. Whilst Mr Gordon’s submission is correct (and not disputed by Miss Demetriou for the Secretary of State), the fact that a justification for a difference in treatment commands wide public support, reflected in a policy judgment by Government, and accepted by Parliament in its approval of subordinate legislation, deserves respect if not unquestioning acceptance. 
31.	The legal certainty/bright lines point similarly does not assist in considering the question whether the HIP Regulations as they apply generally are justified. That is because the bright line might have been drawn to put transferred patients in the same position as civil/section 37 detainees. It might, however, have an impact on the question whether the application of the policy to any individual category of transferred prisoner is lawful.
32.	In the course of submissions made by both parties there was a tendency to argue that transferred patients were the same as patients, on the one hand, or prisoners, on the other. The reality is that they share some characteristics of both, as was eventually accepted by both parties. That reality demonstrates that the Secretary of State was confronted with a policy choice in deciding how to treat them for the purposes of benefits. He could, without legitimate objection from serving prisoners, have equated them with ordinary patients but equally he was justified in treating them in the same way as prisoners.  There is, in my view, a relevant similarity between prisoners and transferred patients, and thus a relevant difference from civil/section 37 patients, for the reasons advanced by the Secretary of State which are summarised in paragraphs 26 and 27 above. In short, they have been sentenced to a term of imprisonment to which they remain subject. Furthermore, that similarity (or difference) is sufficient to justify different treatment for the purposes of Article 14. 
33.	In my judgment, the answer to the question posed by the parties (see paragraph 20 above) is clear. There is, to paraphrase Lord Nicholls in Carson, an obvious, relevant difference between the claimants as a group and those with whom they seek to compare themselves, so that their position cannot be regarded as analogous. For these reasons the general challenge under Article 1 of Protocol 1 read with Article 14 fails. For the same reasons, the general challenges argued by reference to irrationality and domestic principles of equality of treatment fail.
Individual Categories
34.	Mr Gordon argued that features of the circumstances of five of the categories of prisoner earlier identified demonstrate that the policy reflected in the HIP Regulations as a whole is unlawful but even if that were not so, looked at in isolation, the justification falls away for each category. Those categories are post-tariff lifers, mandatory life sentence prisoners, automatic life sentence prisoners, those subject to directions under section 45A of the 1983 Act and technical lifers.
35.	In respect of post-tariff lifers Mr Gordon submitted that, at least in respect of those who continue to be detained in a hospital, it was impossible to disentangle aspects of dangerousness attributable to mental illness and those of a more routine nature. Additionally, release and rehabilitation was likely to take place through the mental health system rather than the prison system. The conclusion, therefore, should be that once the tariff expired they should be treated for benefits purposes in the same way as section 37 patients. His argument in respect of mandatory life sentence prisoners was a fortiori because the only sentence available upon conviction for murder is life imprisonment, even when the defendant might well otherwise have been able to satisfy the conditions for a hospital order. 
36.	In respect of each of these two categories, there is nothing in their circumstances which can lead to a different conclusion from the general one. Post-tariff lifers remain subject to a prison sentence and their release will be sanctioned only when the parole board concludes that the risk they pose has been adequately contained. The risk factors are not limited to mental health related risks. Similarly, a mandatory lifer is subject to a prison sentence with a minimum term attached to reflect his responsibility for the underlying crime. His release will depend upon the same considerations. An alternative conviction for manslaughter by reason of diminished responsibility has necessarily been rejected. It is true that one of the circumstances in which a person used to be deemed a technical lifer was on the basis that the offender, although mentally disordered, refused to allow a diminished responsibility defence to be run and was as a result, convicted of murder, for which a life sentence is mandatory (see the citation in paragraph 4 above from Shetty). But since that category has now been closed to conform with a judgment of the Strasbourg Court, the possibility that there may be individuals of this sort within the group of mandatory life sentence prisoners does not provide a basis for treating that group differently for benefits purposes from the generality. 
37.	 Mr Gordon further submitted that automatic life sentence prisoners sentenced under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, but subsequently transferred to a mental hospital, and those sentenced under section 45A of the 1983 Act, were also indistinguishable from section 37 patients. These too, in my view, cannot be separated from the generality. In both instances, the sentencing court has chosen not to deal with the defendant by way of a Hospital order under sections 37 and 41 of the 1983 Act. Although Mr Gordon sought support from the considered opinion of the Committee delivered by Lord Bingham of Cornhill in R v Drew [2003] 1 WLR 1213, it in fact highlights the proposition that in these cases the court has decided to impose a prison sentence rather than to make a hospital order.
38.	The position concerning the closed class of technical lifers is, however, potentially different. The starting point for Mr Gordon’s submission was that ‘there is no material distinction between a technical lifer and a patient detained under section 37’ and thus no justification for treating him in a different way. Miss Demetriou objected that there is an obvious distinction, namely that one had in fact received a life sentence and the other been made the subject of a hospital order. She also submitted that once the category became closed there remained no reason to treat its members any differently from other transferred prisoners. Mr Gordon developed his submission by reference to Article 1 of Protocol 1, irrationality and legitimate expectation. The last of these was advanced without conspicuous enthusiasm given the difficulty of bringing the circumstances within the ambit of substantive legitimate expectation as currently understood. In my judgment, the necessary indicia, as discussed by Laws LJ in R (Bhatt Murphy) v The Independent Assessor between paragraphs [32] and [46], are not present.  
39.	The evidence available with regard to the single claimant who falls within this category is that, despite the HIP Regulations, he has continued to be paid his benefits. It is questionable whether he is a ‘victim’ for the purposes of the Human Rights Act 1998, although the issue was not developed in argument and the parties made arguments on the assumption that he was. Furthermore, the position regarding technical lifers was far from clear in the evidence before the Court. The annex A to this judgment records the claimants’ understanding of their positions. In short, he continues to receive his benefits following a successful appeal against an administrative refusal. There is no evidence from the Secretary of State about the position. Nonetheless, one thing did become apparent during the course of the argument:  when the HIP Regulations were in contemplation, and then in draft, no separate consideration was given to the position of the closed category of technical lifers. The written evidence was silent on the point. Miss Demetriou took instructions from Mr Mackrell who confirmed that position. 
40.	There are powerful reasons which can be advanced in support of the proposition that having treated technical lifers for all purposes in the past as if they were subject to a hospital order, there is little or no justification in treating them differently for benefits purposes, whatever the merits of the general policy underlying the HIP Regulations. Mr Gordon submitted that the Secretary of State had ‘virtually conceded the position of technical lifers’ in the course of argument. It is perhaps more accurate to say that Miss Demetriou recognized her difficulty, once it became apparent that the position of this group had never been separately considered.  The reality is that the 45 technical lifers are the unintended victims of a policy that had different objects in its sight. The technical lifer cannot be returned to prison and is treated for all other purposes as if he were subject to a section 37 hospital order with a section 41 restriction. The arguments advanced by the Secretary of State in support of the policy barely touched this group of patient. Be that as it may, the Secretary of State accepts that the position of technical lifers was not considered during the formulation or execution of the policy. That is a material omission. The impact of the HIP Regulations on this category of patient was a factor which the Secretary of State was bound to consider and to which he failed to have regard. Whilst I have concluded that the HIP Regulations as they affect the generality of transferred patients are not objectionable under article 14 ECHR or in other public law terms, the same cannot be said of their application to technical lifers. The Secretary of State has failed to have regard to the position of this category of patient. As a consequence of that failure, no separate justification has been advanced for treating them differently from those who are detained pursuant to hospital orders. To return to the question set out in paragraph 20 above: is there enough of a relevant difference between technical lifers and section 37 patients to justify different treatment? The general justification is not, in my judgment, sufficient, and so the answer to the question is ‘no’.
41.	For these reasons, the claims of all claimants except that of KS are dismissed. KS’ application for judicial review is allowed. I will, if necessary, hear further from counsel on (a) whether any specific relief is appropriate in the light of my conclusions; and (b) what that relief should be.  

Annex

CO/5636/2006
 CO/5640/2006
 CO/6052/2006
CO/9154/2006
 CO/9595/2006
R (EM AND OTHERS) v SECRETARY OF STATE FOR THE DEPARTMENT OF WORK AND PENSIONS

ANNEX OF INDIVIDUAL CIRCUMSTANCES

(1) EM (CO/5636/2006)
1.	On 25 June 2003 EM received an automatic life sentence under Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, for a second serious offence (GBH).   His tariff was 5 years and 23 days.  He was transferred under Sections 47 and 49 of the 1983 Act to Thornford Park Hospital. He is currently being given £21.00 per week pocket money.
2.	EM passed his tariff date on the 18 July 2008.  
(2) KS (CO/5636/2006)
3.	On 26 March 1969 KS was sentenced to life imprisonment for the murder 9 years before of a 9 year old girl. He was 13 at the time of the murder and confessed in 1968.  He is a technical lifer.   He was refused Severe Disablement Allowance, a non-means tested benefit, but a social worker at Ravenswood House Hospital appealed that decision. The appeal was successful. 
(3) EC (CO/5636/2006)
4.	In February 2001 EC received a mandatory life sentence for murder with a tariff of 18 years.  He was transferred to Broadmoor under sections 47 and 49 of the 1983 Act on 17 October 2002 and from April 2008 has been receiving £17.90 per week pocket money.  
 (4) RS (CO/5636/2006)
5.	On 16 May 2002 RS received a mandatory life sentence for murder of her husband’s new partner.  Her tariff was 14 years.  Her plea of diminished responsibility was rejected by the jury. She was transferred to hospital under sections 47 and 49 of the 1983 Act on 27 July 2005. She was transferred back to prison in 2007. Her claim for benefits is therefore a retrospective one for the period during which she was in hospital.      
 (5) FA (CO/5636/2006)
6.	FA was convicted of murder on 20 July 1995, and received a mandatory life sentence for murder with a tariff of 22 years. He was transferred to Broadmoor under sections 47 and 49 of the 1983 Act on 9 January 1996. He then tried to kill a fellow patient on 29 January 1996 and was convicted of attempted murder. For that he was made the subject of a hospital order under sections 37 and 41 of the 1983 Act.   Broadmoor has been paying £17.90 per week pocket money from April 2008.  
 (6) LB (CO/5636/2006)
7.	LB was convicted of attempted rape on 12 March 2003, and sentenced to 10 years’ imprisonment.  He was transferred under Sections 47 and 49 of the 1983 Act to the Dennis Hill Unit in October 2005, but is now detained at River House.  The hospital is paying him £17.90 per week.

8.	(7) JC (CO/5636/2006)
At the Crown Court at Plymouth on 13 May 1998 JC was convicted of manslaughter and sentenced to life imprisonment.  On 23 April 1999 the court ordered that she should be subject to a hospital and limitation direction under section 45A of the 1983 Act. She was admitted to Broadmoor Hospital but then transferred to Rampton Hospital when Broadmoor closed to women.  Her tariff expired on 28 October 2001.  She is currently receiving pocket money of £17.35 per week.  
9.	   (8) AF (CO/5636/2006)
At the Central Criminal Court on 26 March 1999 AF was convicted of rape, attempted rape and indecent assault.  He was sentenced to life imprisonment with a 10 year minimum term, but with a hospital and limitation direction under section 45A of the 1983 Act. His tariff expires later this year.  He is currently receiving pocket money of £17.90 per week.  
(9) IB (CO/5640/2006)
10.	IB was convicted of murder and an offence of grievous bodily harm on 23 November 1995.  He received a mandatory life sentence with a tariff of 28 years.  He was transferred to Broadmoor Hospital on 16 December 1999 under sections 47 and 49 of the 1983 Act and has been receiving £17.90 per week pocket money since April 2008.
(10) SS (CO/6052/2006)
11.	SS received a 12 year prison sentence which expired on 27 November 2007.   He was transferred to hospital on 20 May 2005.  From 27 November 2007 he would have become entitled to benefits at the full amount in any event, but was released on 19 November 2007.  He received £16.40 per week pocket money up to his release on 19 November 2007.  Following release he received Income Support and Disability Living Allowance. On 2 September 2008 he was recalled to prison for breach of conditions of his licence, He was transferred to Stockton Hall on the 16 January 2009. His current benefits position is unclear.
(11) TC (CO/9154/2006)
12.	TC, who is now 56, was sentenced to a mandatory life sentence for murder in 1973. In 1989 he was transferred Rampton under sections 47 and 49 of the 1983 Act. In 2002 he was transferred to conditions of medium security at Cane Hill Forensic Mental Health Unit. On 16 October 2003 a Mental Health Review Tribunal made a recommendation under section 74(1)(a) of the 1983 Act that he would be entitled to a conditional discharge if he had been a restricted patient, but under section 74(1)(b) that he should remain in hospital if not released.   His case was referred to the Parole Board for consideration as to whether he should be released on life licence.  On 17 March 2006 the Parole Board refused to direct his release.  In 2008 the Ministry of Justice conceded a judicial review and agreed to a second Parole Board referral without there being a further MHRT. From April 2006 he received £16.40 per week pocket money; around April 2007 this increased to £17.35 per week; from April 2008 this increased again to £17.90 per week.
 (12) SW (CO/9595/2006)
13.	On 23 November 2001 at Maidstone Crown Court, SW pleaded guilty to manslaughter on the grounds of diminished responsibility.  She was made subject to an interim hospital order under section 38 of the 1983 Act and admitted to St. Andrew’s hospital. A consultant forensic psychiatrist prepared a report for the Court recommending that she be made the subject of a hospital order with restrictions. However SW was so adamantly opposed to such an order being made that the offer of a bed was withdrawn.  On 19 April 2002 the claimant was sentenced to life imprisonment, with a tariff of 7 years. She did not become a technical lifer. A transfer direction to Broadmoor Hospital was made on 23 December 2002 under sections 47 and 49 of the 1983 Act.  She was subsequently transferred to Rampton when Broadmoor closed to women in 2008. She is currently receiving £17.35 pw pocket money.