Public Protection through Hospital Orders: Jenkins v R and the Substitution of s.37/41 MHA Orders for IPP Sentences

1. Introduction

This commentary examines the decision of the England and Wales Court of Appeal (Criminal Division) in Jenkins v R [2025] EWCA Crim 1657, a significant judgment at the intersection of public protection sentencing and mental health law.

The case concerns an appellant who, in 2009, received an indeterminate sentence of imprisonment for public protection (IPP) under section 225 Criminal Justice Act 2003 for a street robbery, with a minimum term of two years. By 2025 he had long since completed the punitive element of that sentence but remained detained, mostly in secure psychiatric units, because of a chronic relapsing psychotic illness (paranoid schizophrenia) compounded by a dissocial (antisocial) personality disorder.

Following a reference by the Criminal Cases Review Commission (CCRC) under section 9 Criminal Appeal Act 1995, the Court was asked to determine whether, in light of extensive fresh psychiatric evidence and the appellant’s clinical history since sentence, the IPP was wrong in principle and should be replaced with a hospital order with restrictions under sections 37/41 of the Mental Health Act 1983 (MHA 1983).

A further, more technical, set of issues arose because the appellant had been given three later sentences for assaults, all ordered to run consecutively to the IPP. Once the IPP was quashed and replaced by a hospital order, the Court had to decide how to deal with:

• Two Crown Court sentences for assault occasioning actual bodily harm (AOABH); and
• One Magistrates’ Court sentence for assault on an emergency worker.

The judgment therefore addresses both:

• When and why an IPP may be replaced by a s.37/41 hospital order many years after sentence, and
• The procedural and jurisdictional tools for untangling later consecutive sentences once the original IPP tariff structure is removed.

2. Factual and Procedural Background

2.1 The index offence and the 2009 IPP sentence

The index offence was a street robbery in April 2008. The appellant snatched a mobile phone from a woman in Notting Hill, elbowing her in the face; he was quickly detained by passers-by and arrested. The Court expressly noted that, given the lapse of time and the fact that any legitimate punitive purpose of the sentence had long since been served, the detailed facts of the robbery were “not central” to the appeal (para 4).

What was crucial was the appellant’s pre-existing criminal record and mental health profile at the time of sentence in July 2009:

• 28 convictions for 53 offences between 1997 and 2008, including robbery, deception, criminal damage, racially aggravated threatening behaviour, drug offences and common assault (para 5).
• Accepted diagnoses of paranoid schizophrenia exacerbated by poly-substance misuse and a dissocial personality disorder (para 7).

The sentencing judge (His Honour Judge Robbins) had before him:

• Two pre-sentence reports (PSRs); and
• Two psychiatric reports (Dr Browne, Dr Levy).

Dr Levy, the prison psychiatrist, accepted the presence of schizophrenia but advised that the disorder was not of a “nature or degree” warranting hospital treatment; he considered appropriate treatment could be provided in prison (para 7). The judge accepted that view, assessed the robbery as meriting a notional four-year determinate sentence, found the appellant “dangerous”, and imposed an IPP with a minimum term of two years less remand time (para 8).

An earlier appeal in 2010, confined to challenging the length of the custodial term, was dismissed (R v Jenkins [2010] EWCA Crim 1259) (para 9).

2.2 The IPP regime and the current policy context

The Court took the opportunity to restate the essential features of the (now-abolished) IPP regime (paras 15–17):

• Available between 2005 and 2012 for offenders assessed as posing a significant risk of serious harm through further serious offences.
• Consisted of a minimum term (tariff) to punish the index offence; release thereafter depended entirely on the Parole Board’s assessment of risk.
• Release was never automatic; licence conditions were potentially lifelong, with recall possible for breach, again subject to Parole Board review.

The Court contextualised the case with updated IPP statistics: as of 31 March 2024 there were 1,180 unreleased IPP prisoners and 1,616 recalled IPP prisoners, totalling 2,796; all but 13 unreleased prisoners had passed their tariff dates (para 18). This underlines the wider systemic concern about IPP sentences and their interaction with mental disorder, of which Jenkins is an acute example.

2.3 The appellant’s post-sentence clinical trajectory

Following the IPP, the appellant’s mental health course was characterised by:

• Repeated relapses in prison leading to multiple transfers to hospital under sections 47/49 MHA 1983 (prison-to-hospital transfers with continued prison sentence running),
• Most recently in October 2020, with admission to the John Howard Centre and then transfer to the Three Bridges Unit (West London Forensic Service) in June 2021, where he remains (paras 20, 28).

In parallel, he committed three further violent offences (all assaults) whilst in custody, for which he received:

1. 2012 (Isleworth Crown Court): 2 months’ imprisonment for AOABH, consecutive to the IPP (“sentence two”) (para 46(1)).
2. 2016 (Kingston Crown Court): 12 months’ imprisonment for AOABH, consecutive to IPP and sentence two (“sentence three”) (para 46(2)).
3. 2020 (West London Magistrates’ Court): 16 weeks’ imprisonment for assault on an emergency worker, consecutive to the IPP (“sentence four”) (para 46(3)).

By 2025, the appellant had spent over 16 years in detention (prison and secure hospital), vastly exceeding the two-year tariff envisaged in 2009.

3. The CCRC Reference and Issues Before the Court

3.1 The CCRC’s involvement and fresh application

The appellant first applied to the CCRC in 2017, but without fresh psychiatric evidence; the CCRC declined to refer (para 10). In 2020, now instructed by new solicitors, he applied again, supported by a substantial report from consultant forensic psychiatrist Dr Nadji Kahtan (6 March 2020).

The core submission was that new information about the appellant’s psychiatric condition showed that:

• The 2009 psychiatric assessment (especially that of Dr Levy) was materially flawed; and
• At the time of sentence, and continuing thereafter, the appellant was and is more appropriately managed under a hospital order with restrictions (ss.37/41 MHA 1983), rather than through an IPP (para 11).

The CCRC obtained further expert input from:

• Dr Kahtan (treating psychiatrist from before the robbery); and
• Dr Amit Nigam, the appellant’s responsible clinician at Three Bridges since 2021 (paras 12, 28).

The CCRC concluded there was a realistic prospect that:

• The Court of Appeal would receive this fresh psychiatric evidence under section 23 Criminal Appeal Act 1968; and
• Upon doing so, it would find that the correct disposal in 2009 (and now) should have been a s.37/41 hospital order, and would therefore quash the IPP and substitute such an order (para 13).

The Court emphasised (para 14) that very much more is now known, sixteen years later, about:

• The nature and treatability of the appellant’s condition;
• The interaction between his mental illness and offending; and
• His response to treatment in multiple hospital admissions.

Importantly, the Court stressed there was no criticism of the 2009 sentencing judge, who acted on the evidence then available.

3.2 The single ground of appeal

The single ground (para 19) was that, in light of the fresh evidence:

• The IPP sentence was “wrong in principle”; and
• A hospital order with restriction (ss.37/41 MHA 1983) would have been, and remains, the most appropriate disposal.

The central contention was that Dr Levy’s 2009 opinion – that the appellant’s schizophrenia was not of a nature or degree requiring hospitalisation because equivalent treatment could be provided in prison – was incorrect, as demonstrated by his clinical course and modern psychiatric evidence.

3.3 Ancillary issues: the later consecutive sentences

The Court also had to address the status of the three later consecutive sentences (paras 46–47). Once the IPP was quashed and replaced with a hospital order, simply leaving those sentences formally in place as “consecutive” to a defunct IPP created legal and practical difficulties. The Court therefore explored:

• Whether and how it could modify the Crown Court sentences (sentences two and three) as part of the same appellate process; and
• The more complex question of varying or appealing the Magistrates’ Court sentence (sentence four), including the scope of:
  • Section 142 Magistrates’ Courts Act 1980 (power to vary sentences to rectify mistakes); and
  • Section 108 Magistrates’ Courts Act 1980 (appeals to the Crown Court), read with section 66 Courts Act 2003 (High Court judge and others sitting as District Judges (Magistrates’ Courts)).

4. Summary of the Judgment

4.1 Admission of fresh psychiatric evidence

Under section 23 Criminal Appeal Act 1968 the Court admitted extensive fresh psychiatric material (paras 22–23, 35), including multiple reports and oral evidence from:

• Dr Nadji Kahtan (reports: 6 March 2020, 29 July 2025, 24 November 2025); and
• Dr Amit Nigam (reports: 15 December 2022, 8 August 2024, 26 September 2024, 28 October 2024, 26 May 2025).

The prosecution did not contest admissibility (para 35).

4.2 Quashing the IPP and substituting a s.37/41 hospital order

Having reviewed the fresh evidence and applied the established principles from Vowles, Edwards and Surrey, the Court held that:

• The appellant suffers from a chronic, relapsing psychotic illness (paranoid schizophrenia) and a co-existing personality disorder, with the two conditions “inextricably linked” (para 36, 40–41).
• The risk he presents to the public is overwhelmingly driven by his psychotic illness – particularly when non-compliant with medication – rather than by stand-alone personality traits (paras 24–26, 28–34, 36, 40–42).
• The punitive part of his 2009 IPP was long ago served; the remaining justification for detention is public protection and treatment needs, not punishment (paras 36, 39).
• Given his clinical profile, history of repeated relapses in prison, and demonstrable stabilisation in hospital, public safety is better served by a hospital order with restrictions (s.37/41 MHA 1983) than by continued detention and eventual release under an IPP regime (paras 39–43).

Accordingly, the Court:

• Allowed the appeal against the 2009 IPP sentence;
• Quashed the IPP; and
• Substituted a hospital order with restriction under sections 37 and 41 MHA 1983, specifying the current hospital (Three Bridges Unit) and the diagnoses of paranoid schizophrenia and antisocial personality disorder (para 44–45).

4.3 Crown Court sentences: removing the consecutive element

In respect of sentences two and three (the Crown Court AOABH sentences), the Court:

• Granted an extension of time and leave to appeal (para 48);
• Accepted that this was one of the “rare and exceptional” situations in which it may adjust otherwise lawful sentences in light of post-sentence developments (paras 49–50, relying on Layden and Prenga); and
• Quashed the orders that these terms were to run consecutively to the IPP (para 50).

The effect (via section 29(4) Criminal Appeal Act 1968) is that:

• The two Crown Court terms are treated as having run from their respective dates of imposition; and
• They have now been fully served, with no residual custodial term sitting “behind” the newly-imposed hospital order.

4.4 Magistrates’ Court sentence: rejection of s.142 route and recourse to appeal

The 2020 Magistrates’ Court sentence (sentence four) presented a sharper jurisdictional question. Two procedural options were considered (paras 52–54):

1. Variation under section 142 Magistrates’ Courts Act 1980 by a single judge of the Court of Appeal sitting as a District Judge (Magistrates’ Courts) under section 66 Courts Act 2003; or
2. Appeal under section 108 Magistrates’ Courts Act 1980 to the Crown Court (as to sentence), with the Court of Appeal judges constituting the necessary Crown Court panel under section 66 Courts Act 2003.

While the first route would have been simpler and could have been done on the papers (subject to public announcement under CrimPR 28.4), the Court held that section 142 could not properly be used in this case (paras 55–60):

• Section 142 is rooted in correcting “mistakes and errors”, not in re-trying or revisiting sentences that were lawful at the time (para 57, applying Williamson and later authority such as Houston and Rathor).
• There was no clear evidence of a legal or procedural error in 2020; the sentence was on its face lawful and within jurisdiction (para 59).
• At most, what might be alleged was an “error of judgment” in deciding to make it consecutive, which is a matter for an appeal, not a section 142 variation (para 59).

The Court therefore declined to use section 142 (para 60) and opted instead for the appeal route:

• It would conduct an appeal under section 108(1) Magistrates’ Courts Act 1980;
• Constituted by one of the High Court judges sitting as a Crown Court judge, and both judges also sitting as District Judges (Magistrates’ Courts) under section 66 Courts Act 2003 (para 61);
• The appeal would be heard in open court immediately following hand-down of the judgment (para 61).

That aspect (the eventual outcome of the s.108 appeal) lies outside the text provided, but the key point of legal significance is the Court’s clear re-affirmation of the limited scope of section 142 and its endorsement of the structured appeal route as the proper mechanism to adjust a lawful but now problematic Magistrates’ Court sentence.

5. Analysis of the Court’s Reasoning

5.1 The fresh psychiatric evidence and its implications

5.1.1 Dr Kahtan’s evidence

Dr Nadji Kahtan had a unique vantage point:

• He had treated the appellant before the 2008 robbery and had previously recommended a hospital order for an earlier offence (para 24).
• He was not consulted at the time of the 2009 robbery sentence – a fact he considered significant (para 25(vii)).

In his 2020 report (paras 24, 394–399), he opined that:

• It was “obvious even at the time of sentencing” that the appellant suffered from a chronic, relapsing paranoid schizophrenia, with relapses precipitated by non-compliance with medication and possibly substance use.
• Non-compliance was “inevitable” given his lack of insight.
• He posed a “considerable risk” to others when relapsed, far exceeding the risk when well.
• His mental illness clearly fell within the MHA 1983 definition of “mental disorder”.
• It was “highly likely” he was relapsing at the time of the index robbery, judging by his behaviour at arrest, his being found unfit for interview, and his presentation in prison before he resumed antipsychotic medication.
• At the time of sentence in July 2009, his illness was at least of a nature, if not of a degree, making treatment in hospital appropriate in the interests of his health and the protection of others.
• His subsequent course – at least five clear relapses from prison requiring hospital admission, often with violent or dangerous behaviour – made it “abundantly obvious” that IPP was the wrong sentence (para 24, 397–399).

His 2025 update (para 26) intensifies the criticism:

• For offenders like the appellant (chronic relapsing psychosis, serious violence and risk when unwell) the “optimal disposal” is always a section 37 hospital order with a section 41 restriction.
• A lengthy custodial sentence is “not suitable” where the offence is related to mental illness and relapse is predictable, because:
  • Such patients will inevitably relapse in prison;
  • They cannot be compelled to take medication in prison;
  • They tend to assault staff during psychotic relapses; and
  • IPPs in particular leave them effectively unable ever to satisfy the Parole Board, partly because they cannot complete sentence planning and partly because probation supervision cannot ensure medication compliance as effectively as a hospital restriction regime (para 26(13)).

He was also sharply critical of Dr Levy’s 5-minute assessment in 2009 as an inadequate basis for concluding that the appellant did not need hospital treatment, saying that at minimum he should have been transferred for assessment (para 27).

5.1.2 Dr Nigam’s evidence

Dr Amit Nigam, as current responsible clinician, provided a more cautious retrospective view of the appellant’s mental state at the time of the 2008 offence, noting the diagnostic difficulties posed by concurrent substance misuse (para 28). He did, however, agree that:

• The nature of the appellant’s psychotic illness – relapsing/remitting paranoid schizophrenia – has become much clearer since sentence (para 28, 30(iii), 31(ii)).
• The illness is treatable in hospital under s.37 and has consistently responded to antipsychotic treatment during hospital admissions (para 29).
• Given the risk profile, a restriction order under s.41 is appropriate to provide robust public protection (para 29–30, 33(ii)).

He highlighted several structural advantages of a s.37/41 pathway:

• The appellant’s risk to others increases when non-compliant with medication; he will require long-term antipsychotic treatment and close supervision of compliance (para 30(i)-(ii)).
• Hospital discharge under a restriction order allows for:
  • Placement in 24-hour supported accommodation;
  • Ongoing oversight by a forensic mental health team;
  • Immediate recall to secure hospital on signs of non-compliance or relapse, usually within hours (para 30(iv), 33(ii), 34(4)).
• If released from prison under an IPP licence, the appellant would not be eligible for equivalent specialist forensic follow-up; recall would be to prison, with a history of relapse and assaults in that environment (paras 29, 30(v), 33(iii)).

Crucially, both psychiatrists were clear (para 34) that:

• The appellant’s condition has always been of a nature – and frequently of a degree – to justify detention in hospital;
• His aggressive behaviour cannot be reliably separated into “illness-based” and “personality-based” components; the conditions are intertwined (paras 24–26, 28–34, 36, 40–42); and
• The section 37 criteria are plainly met and a bed is available (para 34(6)).

5.2 The legal framework: hospital orders, hybrid orders, and Vowles/Edwards/Surrey

5.2.1 Hospital orders (s.37) and restriction orders (s.41)

A hospital order under section 37 MHA 1983 authorises the detention of an offender in hospital for medical treatment instead of (or in substitution for) a custodial sentence, provided:

• Two registered medical practitioners (usually psychiatrists) recommend such an order; and
• The court is satisfied that the offender suffers from a mental disorder of a nature or degree warranting hospital treatment and that such an order is the most suitable disposal.

A restriction order under section 41 can be added where necessary for public protection. It subjects discharge, leave and transfers to the control of the Secretary of State (and the First-tier Tribunal (Mental Health)), allowing very close and long-term oversight.

5.2.2 Hybrid orders (s.45A MHA 1983)

A hospital and limitation direction under section 45A MHA 1983 (a “hybrid order”) allows the court to impose a prison sentence, with a direction for the offender to be treated in hospital at first, but with liability to be removed to prison later. The Court emphasised that:

• Hybrid orders are not in play here because the punitive element of the original IPP has long been served (para 39); and
• In any event, both psychiatrists regarded hybrid orders as clinically unsuitable for patients like the appellant, as they risk repeated relapses upon return to prison (para 25(iv), 33(iii)).

5.2.3 The Vowles/Edwards/Surrey guidance

The Court expressly situated its reasoning within the framework established in:

• R v Vowles [2015] EWCA Crim 45;
• R v Edwards [2018] EWCA Crim 595; and
• R v Surrey [2022] EWCA Crim 1279 (para 37).

In Vowles, the Court set out the principles governing when a hospital order (with or without restriction) should be made instead of a custodial sentence; Edwards and Surrey elaborated this for substitution on appeal. Surrey (para 53) summarised the key considerations:

1. The statutory requirement for two medical recommendations (s.37(2)(a)) must be met, but is not conclusive.
2. Judges must then consider “all relevant circumstances” under s.37(2)(b), notably:
   1. The extent to which the offender needs treatment for their mental disorder;
   2. The extent to which the offending is attributable to that disorder;
   3. The extent to which punishment is required; and
   4. The protection of the public, including differences in release/recall regimes between penal and mental health disposals.

In Jenkins, the parties accepted that factors (b) and (d) in that list – the attribution of offending to disorder and the public protection dimension – were paramount (para 38). Factor (c) (punishment) had largely fallen away because the tariff had been served long before.

5.3 Application of the Vowles/Edwards/Surrey test in Jenkins

5.3.1 Treatment need and attribution of offending (factors (a) and (b))

The Court held that:

• The appellant’s need for hospital treatment is substantial and enduring:
  • His schizophrenia is chronic and relapsing;
  • He lacks insight and has a strong tendency to stop medication when not compelled;
  • Relapse is associated with serious violence and fire-setting (paras 24, 26, 30, 34(1)).
• The appellant’s offending – both the index robbery and later assaults – is closely linked to his psychotic illness:
  • Relapses correspond with aggressive episodes; and
  • Even when personality disorder contributes, it cannot be cleanly separated from the psychosis (paras 24–26, 28–34, 36, 40–42).

The Court accepted both psychiatrists’ position that the appellant’s conditions are “inextricably linked” (para 36) and that his relatively low IQ (around 71–72) limits the impact of psychological interventions aimed at personality disorder until his psychosis is optimally controlled (para 36, 34(2)).

5.3.2 Punishment (factor (c))

By 2025, the two-year tariff on the 2009 IPP had long since expired (para 36). The Court therefore recognised that:

• The legitimate punitive function of the sentence had been fulfilled; and
• The only remaining justification for detention is .

This is crucial: because the punitive element is exhausted, the Court explicitly rejected the idea of imposing a s.45A hybrid order now (para 39). The only realistic options were:

• Leave the IPP in place (with ongoing hospital transfers under s.47/49); or
• Quash the IPP and substitute a s.37/41 hospital order.

5.3.3 Public protection and release/recall regimes (factor (d))

This is the core of the Court’s decision. The Court considered, in a very practical way, the different risk management architectures attached to:

1. Release from IPP custody (with Parole Board and MAPPA involvement); and
2. Release from a section 37/41 hospital order (with MAPPA involvement plus mental health tribunal oversight and swift hospital recall powers).

The key points were:

• In prison, the appellant cannot be compelled to take medication; historically, he has often refused, leading to dangerous relapses and assaults (paras 24, 26, 34(3), 40).
• In hospital, although compulsion has not yet been needed, it can be used if necessary; this makes adherence to medication – the single most important risk-management factor – more reliable (paras 26, 34(3), 42).
• The release pathway from hospital under a s.37/41 order typically involves:
  • Discharge only to 24-hour supported accommodation;
  • Staff trained in managing mental health conditions;
  • Immediate access to a community forensic mental health team; and
  • Conditions on residence, appointments, medication, and substance use, enforced by rapid recall to hospital where concerns arise (paras 24, 30, 33, 34(4)).
• The MAPPA framework supplements this in the same way it would under an IPP release, but in hospital cases MAPPA’s recommendations plug into a more specialised mental health infrastructure (para 34(5), 42).

The Court concluded that the s.37/41 regime better serves public safety in cases like this because it is designed around:

• Ensuring ongoing medication compliance;
• Providing appropriate supported accommodation; and
• Allowing expedited recall to hospital on early signs of relapse.

By contrast, an IPP – particularly for a mentally disordered prisoner who may be unable to complete programmes or demonstrate “risk reduction” in prison – can result in:

• Prolonged detention far beyond the tariff,
• Interrupted and non-compulsory treatment, and
• No guarantee of a safe and clinically supported release package.

5.4 The core principle emerging from Jenkins

Jenkins effectively consolidates and extends earlier case law by articulating a clear principle for cases where:

• An offender received an IPP (or similar custodial sentence) years earlier;
• We now know they suffer from a chronic, relapsing psychotic illness, significantly linked to their offending behaviour;
• They have repeatedly relapsed in prison, often requiring transfers to hospital under s.47/49 MHA;
• They have demonstrated relative stability in a secure hospital setting; and
• The punitive element of their original sentence has long been served.

In such circumstances, where:

• Public protection is more effectively achieved through a tightly regulated hospital and restriction regime; and
• Key risk factors (such as medication non-compliance) are best managed with the tools available only in the mental health system,

the Court of Appeal may:

• Quash the original IPP (or other indeterminate custodial sentence); and
• Substitute a s.37/41 hospital order, even many years after the original sentence, using fresh evidence admitted under section 23 Criminal Appeal Act 1968.

The decision is not about leniency; it is explicitly about:

• Aligning the disposal with the offender’s mental disorder;
• Ensuring that public protection is maximised by using the most appropriate legal and clinical framework; and
• Avoiding the practical impasse where severely mentally ill IPP prisoners languish indefinitely without realistic prospects of safe progression.

5.5 Treatment of subsequent Crown Court sentences: “rare and exceptional” modification

The Court’s treatment of the two Crown Court sentences (sentences two and three) is grounded in established appellate restraint. As restated in R v Layden [2025] EWCA Crim 659, the Court of Appeal generally does not vary lawful sentences based on post-sentence developments except in “rare and exceptional” circumstances (para 49, referring also to R v Prenga [2017] EWCA Crim 2149).

Here, such circumstances clearly arose:

• The structure of all three later sentences was premised on the IPP being the foundational sentence; all others were “consecutive to the IPP”.
• Once the IPP was quashed and replaced with a hospital order, leaving the subsequent sentences formally consecutive to a sentence which no longer existed risked legal incoherence and potential unfairness.
• The appellant had already been detained far longer than the combined further terms; the prosecution took a neutral stance on modification (para 48–50).

The Court therefore:

• Granted leave out of time to appeal sentences two and three (para 48);
• Allowed the appeals; and
• Quashed only the “consecutive” element, thereby allowing the sentences to be treated as having run from their imposition dates and now fully served (para 50, applying s.29(4) CAA 1968).

This approach:

• Avoids suggesting that the original sentences were unlawful;
• Respects appellate caution; yet
• Ensures the overall sentencing structure remains coherent once the IPP is removed.

5.6 Magistrates’ Court sentence: the scope of s.142 M.C.A. and structural use of s.66 C.A.

The treatment of sentence four illuminates two important procedural points:

1. The proper scope and limits of section 142 Magistrates’ Courts Act 1980; and
2. The flexible use of section 66 Courts Act 2003 to constitute the Court of Appeal as the appropriate appellate tribunal for Magistrates’ Court appeals.

5.6.1 Section 142: mistakes versus appeals

Section 142 allows a magistrates’ court to “vary or rescind” a sentence or order “if it appears to the court to be in the interests of justice to do so,” and to replace an invalid sentence with a valid one (para 55). Earlier case law had diverged on how broad this power is:

• Trigger and Manorgale suggested a relatively generous view (para 58).
• Williamson (Burnett J), Houston and Rathor favoured a more restricted interpretation, seeing s.142 as essentially a mechanism for correcting mistakes and slips rather than acting as a surrogate appeal (paras 57–58).

The Court in Jenkins aligns itself with the narrower view without attempting to settle every possible borderline:

• It affirms that s.142 is “rooted in the concept of correcting mistakes and errors” and is not equivalent to an appeal jurisdiction (para 57).
• It notes that while the 28-day time limit has been removed (so s.142 can be used long after conviction), it still must not be used to “neuter” appeals by way of case stated or other appellate processes (para 57).

On the facts:

• There was no transcript or note of reasons from the Magistrates’ Court (para 59).
• The sentence was plainly within power and lawful.
• There was no identifiable legal or procedural error; at most, there could be a contention that ordering concurrency rather than consecutiveness would have been more appropriate.

The Court characterised that sort of contention as an alleged error of judgment, which is a matter for an appeal, not for s.142 (para 59). It therefore ruled that s.142 could not be used in this case (para 60).

The practical implication is clear: where the original Magistrates’ Court sentence is lawful and procedurally unobjectionable, but later developments make it desirable to adjust the sentence, the proper route is appeal, not s.142 variation.

5.6.2 Section 66 Courts Act 2003 and appellate structure

Because an s.108 Magistrates’ Court appeal lies to the Crown Court (and must be heard in public by a properly constituted tribunal: CrimPR 34.8 and 34.11), the Court of Appeal employed a structural device:

• Under section 66 Courts Act 2003, certain judges (including High Court judges) may sit as District Judges (Magistrates’ Courts) and also as Crown Court judges.
• The Court proposed that one of the two High Court judges would sit as the Crown Court judge, with both judges also sitting as DJ(MC)s, thereby fulfilling the statutory and procedural requirements for hearing the s.108 appeal (para 61).
• The case was listed in open court, with counsel present, immediately after hand-down (para 61).

This provides a neat illustration of how the senior appellate court can:

• Resolve complex, multi-layered sentencing issues in a single sitting; and
• Maintain proper jurisdictional boundaries (not misusing s.142) while using s.66 to constitute itself as the correct appellate court for the Magistrates’ sentence.

6. Complex Legal Concepts Explained

6.1 IPP sentences

An IPP (Imprisonment for Public Protection) was an indeterminate sentence introduced by the Criminal Justice Act 2003 (s.225) for certain serious offences. Key features:

• The judge sets a minimum term (tariff) reflecting punishment for the offence.
• After the tariff expires, the prisoner can only be released if the Parole Board is satisfied they no longer pose an unacceptable risk of serious harm.
• Release is not automatic at the tariff; many remain in custody for years beyond.
• On release, the prisoner remains on licence indefinitely unless the Parole Board eventually directs licence termination; recall to prison is possible for breach.

IPPs have been widely criticised for producing large numbers of prisoners detained long after tariff expiry, many of whom struggle to progress through risk-reduction work. The position is particularly acute for those with serious mental disorders.

6.2 Hospital orders (s.37), restriction orders (s.41) and hybrid orders (s.45A)

• Section 37 hospital order: The court orders that the offender be detained in hospital for medical treatment instead of serving a prison sentence. Requires:
  • Two medical recommendations;
  • Evidence of a mental disorder of a “nature or degree” warranting hospital treatment; and
  • That a hospital order is the most suitable disposal.
• Section 41 restriction order: Added to a s.37 order where necessary to protect the public. It means:
  • Discharge, leave and transfers are subject to strict control (by the Secretary of State and Tribunal);
  • Recall can be rapid and is decided on clinical and risk grounds.
• Section 45A hybrid order: A prison sentence with an initial direction to hospital for treatment; the offender may later be returned to prison. It combines penal and mental health elements and is generally inappropriate where the punitive component is already spent or where prison is clinically contraindicated.

6.3 “Nature or degree” of mental disorder

Under the MHA 1983, a mental disorder must be of such a “nature or degree” as to warrant hospital treatment:

• Nature refers to the type and enduring features of the disorder (e.g. chronic paranoid schizophrenia).
• Degree relates to the current severity of symptoms at or about the time of sentencing.

In Jenkins, the Court accepts that:

• The “nature” limb was plainly satisfied in 2009 and remains so; and
• Depending on symptom severity at any given time, the “degree” requirement was frequently met too (paras 24, 34(1), 40–41).

6.4 s.47/49 transfers

Sections 47 and 49 MHA 1983 allow the Secretary of State to:

• Transfer a sentenced prisoner to hospital for treatment (s.47); and
• Impose restrictions on that transfer similar to a s.41 order (s.49), though the underlying sentence remains a prison sentence.

This is how the appellant spent long periods in secure hospitals while still technically serving his IPP. But those provisions are reactive and temporary; they do not replace the sentence structure in the way a s.37/41 substitution does on appeal.

6.5 CCRC references and fresh evidence on appeal

The Criminal Cases Review Commission (CCRC) can refer a conviction or sentence to the Court of Appeal where there is a “real possibility” that the Court will not uphold the original result. Under section 9(2) Criminal Appeal Act 1995, a reference is treated as if it were an ordinary appeal under section 1 of the 1968 Act; no leave or extension of time is required on the referred ground (para 3).

Section 23 Criminal Appeal Act 1968 allows the Court to admit fresh evidence if it thinks it necessary or expedient in the interests of justice. Jenkins is a classic example: developments over 16 years in the appellant’s clinical profile and treatment experience provided a powerful basis for re-assessment.

6.6 Section 142 Magistrates’ Courts Act 1980

Section 142 allows a Magistrates’ Court to reopen and vary or rescind a sentence or order “if it appears to the court to be in the interests of justice to do so”, including replacing an invalid sentence with a valid one (para 55). However, as reaffirmed in Jenkins:

• The power is primarily for correcting mistakes, slips or invalidity (e.g. obvious legal error, misapplication of maximum powers);
• It is not to be used as a general reconsideration or appeal mechanism for sentences that were lawful and procedurally sound at the time (paras 57–60).

7. Impact and Broader Significance

7.1 For IPP prisoners with serious mental illness

Jenkins is likely to be invoked in future cases where:

• Prisoners serving IPPs (or other long sentences) have chronic relapsing psychotic disorders;
• They have experienced repeated transfers to hospital under s.47/49;
• Their offending behaviour is largely driven by mental illness; and
• The punitive tariff has long since expired.

The judgment provides a clear and structured route for converting such cases into s.37/41 disposals, particularly via CCRC references supported by robust contemporary psychiatric evidence. It recognises that:

• For some mentally ill prisoners, continued IPP detention is neither clinically appropriate nor the best means of protecting the public;
• Hospital orders with restrictions can provide tighter, more responsive, and more expert risk management than the parole-and-recall model of IPPs.

7.2 For sentencing mentally disordered offenders generally

The case reinforces several important sentencing messages:

• Sentencers should be slow to prefer prison, especially long or indeterminate sentences, over hospital orders where:
  • The offence is substantially attributable to serious mental illness;
  • The illness is chronic and relapsing; and
  • Medication compliance is precarious in prison but can be enforced in hospital.
• Hybrid orders under s.45A should be used cautiously where repeated cycling between hospital and prison risks clinical deterioration and increased risk (para 25(iv), 33(iii), 39).
• Proper, detailed psychiatric assessment at the time of sentence is essential; reliance on a brief or superficial prison-based assessment, as in 2009, can have decades-long consequences.

7.3 For the interpretation of s.142 MCA and appellate mechanics

On the procedural side, Jenkins:

• Strengthens the view that s.142 MCA is not a substitute appeal; it is a tool for correcting mistakes or invalid sentences, not for rebalancing lawful sentences in light of later events.
• Demonstrates how the Court of Appeal can, via s.66 Courts Act 2003, constitute itself as the appropriate appellate body (Crown Court) to hear a Magistrates’ Court appeal under s.108 MCA when necessary to tidy up a complex sentencing picture.

This provides a practical blueprint for dealing with “downstream” magistrates’ sentences whose structure depends on an earlier sentence that is later radically altered by the Court of Appeal.

8. Conclusion

Jenkins v R is a substantial and carefully reasoned judgment that accomplishes three main things:

1. Substantively, it confirms that where an offender’s serious offending and continuing risk are fundamentally driven by a chronic relapsing psychosis, and where the punitive element of an IPP has long been served, public protection may be better served by a s.37/41 hospital order than by persisting with an IPP. The Court is explicit that mental health disposals can, in appropriate cases, offer stronger and more reliable protection to the public.
2. Doctrinally, it integrates and applies the Vowles–Edwards–Surrey principles to the specific context of converting old IPP sentences to hospital orders on the basis of extensive new psychiatric evidence, demonstrating how factor (d) – the comparative public protection offered by different regimes – can be decisive.
3. Procedurally, it clarifies the limited scope of section 142 Magistrates’ Courts Act 1980, emphasising that it is not a general review power, and it illustrates how section 66 Courts Act 2003 can be used creatively to ensure that appropriate appellate structures are in place to cleanly resolve complex sentencing chains involving both Crown and Magistrates’ Courts.

The decision thus stands as an important precedent for the future management of mentally disordered offenders serving legacy IPP sentences, and as a carefully calibrated example of the Court of Appeal using its powers – and the CCRC referral mechanism – to realign sentencing outcomes with both clinical reality and the overarching objective of public protection.